JOURNAL
SPACE
LAW.
VOLUME 21, NUMBER 1
1993
JOURNAL OF SPACE LAW
A journal devoted to the legal problems arising
ont of human activities in outer space
VOLUME 21
NUMBER 1
1993
EDITORIAL BOARD AND ADVISORS
BERGER,HAROLD
Philadelphia, Pennsylvania
GALLOWAY,ElLENE
Washington, D.C.
BOCKSTlEGEL, KARL·HEINZ
Cologne, Germany
GOEDHUIS, D .
. London, England,
BOURELY, MICHEL G.
Luzille par Blere, France
HE, QIZIll
Beijing, China
COCCA, ALDO ARMANDO
Buenes Aires, Argentina
JASENTULIYANA, NANDASIRI
New York, N.Y.
KOPAL, VLADIMIR
Prague, Czechoslovakia
DEMBLlNG, PAUL G.
Washington, D. C.
DlEDERIKS-VERSCHOOR, LH. PH.
Baarn, Holland
MCDOUGAL, MYRES S.
New Haven, Connecticut
VERESHCHETIN, V.S.
Moscow, Russian Federation
FASAN, ERNST
Neunkirchen, Austria
FINCH, EDWARD R., JR.
New York, N.Y.
ZANOTTI, ISIDORO
Washington, D.C.
STEPHEN GOROVE, Chairman
Oxford, Mississippi
All correspondance should be directed to the JOURNAL OF SPACE LAW,
P,O. Box 308, University, Mississippi 38677.
The subscription rate for 1993 is $69.50 (domestic) and $75
(foreign) for two issues. Single issues may be ordered at $38 per issue
(postage and handling included).
Copyright © JOURNAL OF SPACE LAW 1993
Suggested abbreviation: J. SPACE L.
JOURNAL OF SPACE LAW
A journal devoted to the legal problems arising
out of human activities· in outer space
VOLUME 21
1993
NUMBER 1
CONTENTS
In Memoriam: Judge Manfred H. Lachs (1914-1993)
(Stephen Gorove.i.. ................................................................. i
ARTICLES
Settlement of Disputes Regarding Space Activities (Karl-Heinz
Bockstiegel) .....................................................•.................... 1
Toward a Clarification of the Term "Space Object" An International Legal and Policy Imperative?
(Stephen Gorove)............................................... ................. 11
SPECIAL FEATURES
Events of Interest ...................................................................... 27
A.
Past Events ......................................................................... 27
Reports
"International Space Cooperation: Learning from the Past,
Planning for the Future," Kona (Hawaii), 13-15 December
1992 (Kevin J. Madders) ..................................................... 27
U.N. Scientific and Technical Subcommittee on Outer Space Holds
Annual Meeting in New York (Ralph Chipman) ................... 30
Commercial and Industrial Applications in Space: Insurance
Implications (Marco Molino) ............................................... 3 5
U.N. Legal Subcommittee on Space Convenes its Thirty-Second
Session (22 March-8 April 1993) (Cheryl Stoute) ................ 39
Legal Issues of Communications Satellites in LEO (Marco
Ferrazzani) ........................................................................ .44
Space Debris Mitigation and Policy Issues (W. Flury ) .................. .4 6
Second Pan-American Space Conference, Santiago (Chile), 26-30
April 1993 (Sylvia Ospina) ............................................... .5 0
The Law in Relation to Remote Sensing Satellite Techniques for
the Benefit of the Environment (Anne-Marie Malavial/e) .. .5 2
International Conference on Air Transport and Space Applications
in a New World (Toshio Kosuge} ......................................... .54
Comments
The Development of Satellite Communications Law in the FCC:
Highlights of Ten Leading Decisions and Future
Expectations (M. A. Rothblatt} ........................................... .5 6
Case Note
Avtec Systems, Inc. v. Peiffer. ........................................................ 60
Short Accounts
Nuclear Issues and the Global Environment (lonathan Gal/oway} .. 63
Settlement of Space Law Disputes (Katherine M. Gorove} ................ 64
Congressional Notes .......... :............................................................. 65
International Developments ............................................................ 65
IISL Moot Court Competition ........................................................... 66
Other Events ................................................................................... 66
Brief News
..................................................................................... 67
B.
Book
Forthcoming Events .............................................................68
Reviews/Notices ................................................... 69
ANDEM, MAURICE N., INTERNATIONAL LEGAL PROBLEMS IN TIlE
PEACEFUL ExPLORATION AND USEOF OUTER SPACE
(Henri A. Wassenbergh} ...................................................... 69
JASENTIJLIYANA, N. (ED.), SPACE LAw: DEVELOPMENT AND
SCOPE (Katherine M. Gorove} ................................................. 70
LEANZA, UMBERTO (ED.), THE FlITURE OF INTERNATIONAL
TELECOMMUNICATIONS (Katherine M. Gorove} .............................7!
CENlRE D'EruDEs ET DE RECHERCHES SUR LE DROIT DEL'EsPACE,
FAUT·ILCREERUNEORGANlSATIONMONDIALE
DE L'ESPACE? (Katherine M. Gorove} ........................................ 72
CHENG, CHIA-Jur/MENDESDELEON, PABLO (EDS.), THE HIGHWAYS
OF AIR AND OUTER SPACE OVER ASIA ........................................... 73
MAYER, JILLS. (ED.), PROCEEDINGS OFTIlESEVENTII
ANNUAL INTERNATIONAL SPACE DEvELOPMENT CONFERENCESPACE: THE NEXT RENAISSANCE ....•.•.•..••••••...•....•........••••••••.....••.. 74
BLACKLEDGE, ROBERTC./REDFlELD, CAROLLJSEIDA, SlEVEN B.
(EDS.),PROCEEDINGSOFTIlETENrHANNUALlNTENATIONAL
SPACE DEVELOPMENT CONFERENCE - SPACE: A CALLFORACTION .......... 74
HE!NTZE, HANS-JOACHIM (ED.), REMarn SENSING UNDER
CHANGING CONDITIONS .......................... ; .................................... 75
RElJNEN, BESS C.M., THE UNTIED NATIONS SPACE TREATIES ANALYSED ..............75
HARRIS, PHlLIP R., LNING AND WORKING IN SPACEHUMAN BEHAVIOR, CULTURE AND ORGANIZATION .............................76
MARTIN, PIERRE-MARIE, LES TEXTS DU DROIT DE LESPACE.............................76
EUROPEAN CENTRE FOR SPACE LAw, SPACE LAW TEACHING IN EUROPE ...............76
Recent
Publications .................................................................. 78
Books ............................................................................................... 78
Contributions to Books .................................................................... 79
Articles ........................................................................................... 80
Reports ............................................................................................ 81
Comments ........................................................................................ 82
Case Law .......................................................................................... 82
Short Accounts ................................................................................ 83
Book Reviews/Notices ...................................................................... 83
Official Publications ...................................................................... 84
Case Reported ................................................................................. 86
Miscellaneous ................................................................................. 87
Current
Documents .................................................................... 91
Status of Outer Space Treaties (as of 10 February 1933) ................ 91
In Memoriam: Judge Manfred H. Lachs
(1914.1993)
Dr. Manfred H. Lachs, distinguished Judge of the International
of Justice, honored President of the International Institute of Space
seasoned diplomat, eminent scholar and, above all, a warm human
held in the highest respect among colleagues and friends all over the
died on January 14, 1993.
Born on April 21, 1917, in Poland and a recipient of degrees from
Cracow (LL.M. and J.D.), Nancy (Doctor of the University) and Moscow (D.
Sc.) Universities and a .laureate from Cracow University, Judge Lachs held
leading positions during the post World War II era in his native Poland's
Ministry for Foreign Affairs and, later, as Minister Plenipotentiary and
Ambassador of his country. He served as Chairman of the Sixth Committee
on the U.N. General Assembly and of the Legal Subcommittee of the U.N.
Committee on the Peaceful Uses of Outer Space. From 1973·1976, he also
served as President of the International Court of Justice and, in 1990, he
was elected President of the International Institute of Space Law.
As a member of the International Law Commission, the Institut de
Droit International and frequent lecturer at leading institutions of higher
learning around the world, Dr. Lachs received many distinguished awards,
including those from the American Society of International Law, the
International Astronautical Federation and the International Institute of
Space Law. He was a prolific writer enriching the literature with such
eminent scholarly. treatises as TIlE LAW OF OUTER SPACE (1972) and THE TEACHER
IN INTERNATIONAL LAW (1983). His lead articles appeared in many legal
periodicals, including those of the AMERICAN JOURNAL OF INTERNATIONAL LAW and
the JOURNAL OF SPACE LAW.
The International Institute of Space Law mourns the death of a
genuine leader, and the grief in the loss of a distingnished judge, great
statesman, profound scholar and true friend is shared not only by the
international community, but also by this writer and the JOURNAL OF SPACE
LA w which he honored with his writing.
Court
Law,
being,
world,
Stephen Garave
Vice President, International Institute of Space Law
Chairman, Ed. Board, JOURNAL OF SPACE LAW
SETTLEMENT OF DISPUTES REGARDING SPACE
ACTIVITIES
Prof.
Dr.
Karl-Heinz
Bockstiegel*
Introduction
Differences of OplnIOnS and disputes regarding space activities have
occurred from the very beginning of such activities. For a long time during
which only the exploration and much less the practical use of outer space
took place, such differences and disputes were more of an academic and
abstract nature. Natural scientists, legal scholars, politicians, and
diplomats disagreed at the national or international level on what conld or
should be done, what was permitted or forbidden, and which technical,
political, and legal steps should be made in the future. All this had little
practical impact. Every state, institution, enterprise, and person proceeded
as they felt appropriate.
This situation has changed in recent years. With the growing
practical use of otiter space and the growing number of states, state
institutions, international organizations, and private enterprises
indirectly or directly involved or at least interested in space activities
situations occurred and occur where the various views and uses. are
practically incompatible. If, as an example, only a limited number of
locations are available on the Geostationary Orbit for certain satellites for
technical reasons, the diverging views of the states as to the right of access
to this Orbit cannot any longer stand beside each other and be
implemented, if it is foreseeable that they interfere with each other or even
exclude each other. In such a case a solution has to be found in order to
assure that an orderly and effective exploration and use of outer space can .
continue in the future for the benefit of all concerned and for the benefit of
the international community.
Space activities and space law. in this context, are of course not in a
historically unique or unknown situation. Often in the history of
•
Director of the Institute of Air and Space Law and Holder of the Chair for
International Business Law, Cologne Universty; Ch~irman of Advisory Council,
German National Space Agency (DARA); Chairman, Space Law Committee of the
International Law Association; Member of the Board of Directors of the International
President of the Iran-United States Claims Tribunal. The
Institute of Space Law;
Hague, 1984-1988; President, European Council. London Court of International
Arbitration (LelA).
This
article
is
an elaboration of the address presented by Prof. Dr
Karl-Heinz Bockstiegel at the Annual Meeting of the American Society of
International Law in Washington, D.C. on April 1. 1993.
I
2
JOURNAL OF SPACE LAW
Vol. 21, No. 1
international relations states have found themselves in a situation where
new fields of international cooperation and international competition were
in need of a legal framework and, in case no agreement could be reached
between disputing partners, in need of a machinery for the settlement of
disputes. It is a well-known weakness of public international law that,
contrary to national law, rights and duties of a party cannot automatically
be enforced against another party by access to and decision by courts.
Again, to find a similar situation
in space law, is not a surprising problem. International law has developed a
number of methods for the settlement of disputes at the international level
most of which are already mentioned in Art. 33 of the Charter of the United
Nations and in Resolution 2625 (XXV) of the UN General Assembly on
"Principles of International Law Concerning Friendly Relations and
Cooperations Amongst States in Accordance with the Charter". Not all of
these methods can be dealt with here. In any case, decisive and the real
tests are those which assure that a decision is achieved, even if one of the
parties does not agree. These methods are international adjudication and
international arbitration. These two methods are also possible options, if
disputes occur regarding space activities.
2. DispUles Between States
Present codified space law - and there is quite a large volume of it
by now - presents a diversified picture as far as dispute settlement is
concerned. On one hand, one can list not less than 57 international
instruments which in some way deal with the settlement of disputes
regarding space activities. I have listed all of them in a paper 1 which I
presented here in Washington in 1992 at the International Astronautical
Congress and we have dealt with most of them in more detail at a research
and international colloquium of the Cologne Institute of Air and Space Law
some years earlier. 2 At first sight, this may look quite an impressive list.
However, closer scrutiny soon reveals major weaknesses: The major space
law treaties, including the Liability Convention, do not provide a
machinery for binding dispute settlement. Such binding dispute settlement
is only found in very specific instruments for highly limited areas of space
activities.
Anyhow, as the issue of liability is of great practical importance
and, in other fields of international law, very seldom is the subject of
substantive and procedural rules, it must be considered as an important
progress that the Space Liability Convention does indeed contain some
provlSlons on dispute settlement. These provlsIOns contain a similar
solution as we find it in the Convention on the Law of Treaties, namely to
1
2
35 PROC. COLLOQ. L. OUTER SPACE 27 (1993).
SETILEMENT OF SPACE LAW DISPUTES - THE PRESENT STATE OF THE LAW AND
PERSPECTIVES FOR FUTIJRE DEVELOPMENT. PROCEEDINGS OF AN INTERNATIONAL COLLOQUIUMIN
MUNICH (K.-H. Bockstiegel ed., Cologne. 1980).
1993
SETTLEMENT OF DISPUTES
3
the effect that the only procedure really assured is that of conciliation: If
no settlement of a claim is arrived at through diplomatic negotiations as
provided for in Art. XI of the Liability Convention, at the request of either
party a Claims Commission has to be established. Arts. XV to XVII deal
with the details of the appointment and the procedure of this Claims
Commission in a similar way as it is known from international arbitration.
Contents and form of the decision of the Commission are also similar to
what one is used to in an international arbitral award. Art. XVIII provides
that the Claims Commission shall decide the merits of the claims for
compensation and determine the amount of compensation payable, if any.
As Art. XIV para. 1 refers to Art. XII, this determination has to be made
"in accordance with international law and the principles of justice and
equity". And the last sentence of Art. XIX para. 2 provides that the
Commission shall state the reasons for its decision or award. The decisive
weakness of this machinery for dispute settlement is caused by Art. XIX
para. 2 which provides in its first sentence:
"The decision of the Commission shall be final and binding if the
parties have so agreed; otherwise the Commission shall render a final and
recommendatory award which the parties shall consider in good faith."
In other words: the decision is only binding if both parties agree. If
the two parties so agree before the commencement of the procedure, one
might consider the Claims Commission as an ad hoc arbitral tribunal. If the
parties only so agree, after the Commission has decided, or if no agreement
can be achieved between the parties so that the second alternative becomes
applicable, the procedure before the Claims Commission can only be
considered as conciliation. Therefore, conciliation only is assured in the
Liability Convention, not, however, a binding decision. Under these
circumstances it is not surprising that in the only actual dispute that has
so far occurred under the Liability Convention, namely when the Soviet
satellite Cosmos 954 with a nuclear power source fell on the territory of
Canada, the two states negotiated until finally agreement was reached to the
effect that the Soviet Union paid half of the amount originally claimed by'
Canada.3
Another international instrument of high practical relevance which
fails to assure a binding decision in case of a dispute is the Agreement
Among the Government of the USA, Governments of Member States of the
European Space Agency, the Government of Japan and the Government of
Canada on Cooperation in the Detailed Design, Development, Operation. and
Utilization of the Permanently Manned Civil Space Station of 29 September
1988. In order to assure from the very beginning that the cooperation on
this space station be disturbed as little as possible by disputes, Art. 16 of
3
For further details, see K.-H. Btsckstiegel, Case Law on Space Activities. in:
SPACE LAW - DEVELOPMENT AND SCOPE 205, 206 (N. Jasentuliyana ed., Westport and
London, 1992).
4
JOURNAL OF SPACE LAW
Vol. 21, No. 1
the Space Station Agreement provides for a very general cross-waiver of
liability:
The objective of this Article is to establish a crosswaiver of liability by the Partner States and related entities
in the interest of encouraging participation in the
exploration. exploitation, and use of outer space through the
Space Station. This cross-waiver of liability shall be broadly
construed to achieve this objective.
In the very long and detailed further wording of Article 16 the
states concerned waive not only all claims against other partner states but
also against "a related entity of another Partner State and the employees of
any of the entities identified". In addition, each Partner State shall extend
the cross-waiver of liability to its own related entities by requiring them,
by contract or otherwise, to agree to waive all claims against the entities or
persons of the other Partner State. And the Article adds, in para. 3 c: "For
avoidance of doubt, this cross-waiver of liability includes a cross-waiver
of liability arising from the Liability Convention ... ". Should, nevertheless,
still disputes arise regarding the Space Station, Art. 23 of the Space Station
Agreement provides that primarily consultations should be used and then
adds in par. 3: "If an issue not resolved through consultations still needs
to be resolved, the concerned Partners may submit that issue to an agreed
form of dispute resolution such as conciliation, mediation, or arbitration."
Thus it becomes clear that, similarly to the Liability Convention, a
binding dispute settlement by arbitration can only be used if all Partners
concerned agree. That, in fact, means that a binding dispute settlement is
not assured. A special provision, Art. 22, deals with criminal jurisdiction
over personnel on the Space Station.
In so far as not by these or similar provisions specific rules have
been codified, what remains applicable are only the - weak - provisions of
general public international law and of space law both of which are
characterized by the lack of binding dispute settlement. The United States
had suggested during the negotiations on the Outer Space Treaty in Art. 11
of the Draft they presented that "any disputes arIsmg from the
interpretation or application of this Agreement may be referred by any
contracting party thereto to the International Court of Justice for
decision". However, no agreement could be reached and what resulted was
only the provision in Art. III of the Outer Space Treaty to the effect that
"states parties to the Treaty shall carryon activities in the exploration
and use of outer space, including the Moon and other Celestial Bodies, in
accordance with international law, including the Charter of the United
Nations, in the interest of maintaip.ing international peace and security
and promoting international cooperation and understanding."
That leaves us with Art. 2 para. 3 of the UN Charter calling for the
settlement of international disputes by peaceful means and Art. 33 of the
Charter with its non-mandatory listing of possible options for dispute
settlement including "arbitration" and "judicial settlement". As is well
1993
SEITLEMENT OF DISPUTES
5
known, this has not led to many states submitting to the jurisdiction of the
International Court of Justice, though the Court has had some more cases in
recent years, specifically in certain areas like border disputes. The ICJ
has had some more cases since it institutionalized in 1978 the option for
Ad Hoc Chambers4 a procedure which enables the parties to select certain
judges from the Court for such a Chamber to decide their case. Such a
procedure which has been used several times brings of course the Court
close to arbitration, because - as typically in arbitration - the parties
really select their own judges for their specific case. On the other hand,
international arbitration shows certain developments which are moving it
closer to permanent international courts. One aspect of this development is
that, for decades already, administered or institutionalized arbitration,
rather than ad hoc arbitration is being used more often as illustrated by
the well-known international arbitration institutions such as that of the
International Chamber of Commerce 5 whose arbitration rules are referred
to in a great number of international business contracts including those
concluded by states. A further step in this direction has been the
institution of specific arbitration machinery for investment disputes with
states by the Washington Convention which established the International
Centre for Settlement of Investment Disputes in 1965. Lastly the arbitral
process moved even closer to a permanent court when Iran and the United
States in 1981 agreed to establish the Iran-United States Claims Tribunal
in The Hague for disputes both between the two states and between one
state and nationals of the other state,6 in the thus far largest international
dispute with regard to the number of cases and the amounts of many billion
dollars in dispute. As I have been the President of that Tribunal myself
and all decisions of the Tribunal are published and in view of the many
publications on the Tribunal both in the United States and elsewhere I will
refrain from dealing with that experience in more detail'?
4
See S. Schwebel, 81 AM.J. INT'L L. 831 et seq. (1987).
In ICC arbitration, involvement of states as parties has a long tradition [see
K.-H. B5ckstiegel, Arbitration of Disputes between States and Private Enterprises in
the International Chamber of Commerce, 59 AM.J.INT'L L. 579 (1965]) and goes up to
30 % of all ICC cases as the regular statistics of the ICC Court of Arbitration show.
6
Declaration of the Government of the Democratic and Popular Republic of
Algeria (General Declaration); Declaration of the Government of the Democratic and
Popular Republic of Algeria concerning the Settlement of Claims by,the Government
of the United States of America and the Government of the Islamic Republic of Iran
(Claims Settlement Declaration); Undertaking~ of the Government of the United States
of America and the Government of the Islamic Republic of Iran with respect to the
Declaration of the Government of the Democratic and Popular Republic of Algeria
(Undertakings); reprinted in 20 I.L.M. 224 et seq. (1981).
7
As examples for recent publications, see J. WESTBERG, INTERNATIONAL
5
TRANSACTIONS AND CLAIMS INVOLVING GOVERNMENT PARTIES - CASE LAW OF THE IRANUNITED STATES CLAIMS TRIBUNAL (Washington, D.C., 1991); C. Brown, The Lessons of
the Iran-United States Claims Tribunal, 32 VA. J. INT'L L. 421 et seq. (1992). Not an
6
JOURNAL OF SPACE LAW
Vol. 21, No. I
What does all this mean for future dispute settlement regarding
space activities between states? When the Space Law Committee of the
International Law Association, some years ago, took up this matter for the
first time and elaborated a Draft Convention on the Settlement of Space Law
Disputes,8 this instrument followed as much as possible and as closely as
possible the dispute settlement procedure of the Law of the Sea Convention.
In this context it should be pointed out that the difficulties the Law of the
Sea Convention has encountered in not finding ratification by major
industrial states is in no way connected to the dispute settlement
procedure. The solution offered in the Law of the Sea Convention is, of
course, to give the state parties an option between adjudication by the
International Court of Justice or by a specific Tribunal or arbitration,
supplemented by the rule that, if the parties cannot agree on one of these
methods, arbitration is the mandatory method of dispute settlement. In its
Draft Convention on the Settlement of Space Law Disputes, the International
Law Association made certain adaptations in comparison to the Law of the
Sea Convention. Contrary to the International Tribunal for the Law of the
Sea, the ILA Draft provided for an "International Tribunal for Space Law"
only as an option of the state parties if they wished to establish such a
tribunal at a later stage. Otherwise, the Draft gave the state parties a
choice between the International Court of Justice and an arbitral tribunal
constituted in accordance with section V of the Draft Convention. Similarly
to the Law of the Sea Convention, the !LA Draft provides that arbitration is
the mandatory method of dispute settlement, if a party has not expressed a
choice or if two parties in dispute have not chosen· the same method of
dispute settlement.
The world of international relations and specifically the
environment of space activities has changed considerably since the time of
the early 80's when the !LA Draft was elaborated. It may therefore be time
to take a new look of what is considered a feasible dispute settlement
machinery between states regarding their space activities.
3. Disputes Within International Organizations
As in other areas of international law - one may only mention the
Court of Justice of the European Community as an example - also in space
law greater progress regarding a mandatory method of dispute settlement
can be expected within the framework of international organizations. This
evaluation, but a selective resume of issues in the decisions of the Tribunal can be
seen in: K.-H. Bockstiegel, Zur Bedeutung des Iran-United States Claims Tribunal fur
die
Entwic'klung
des
internationalen
Rechzs, FESTSCHRIFT
DER
RECHTSWlSSENSCHAFlLICHEN FAKULTAT ZUR 600-JAIIR·FEIER DER UNIVERSITAT ZU KOLN 605
(Cologne "1988); K.-H. Bockstiegel, Practice of International Dispute Settlement Thoughts after Resigning as President of the Iran-United States Claims Tribunal, in
UBER AMICORUM HONOURING NICOLAS MATEESCO MATIE 17 (Montreal 1989).
8
INTERNATIONAL LAW ASSOCIATION, REPORT OF TIlE 61ST CONFERENCE 325 el seq.,
334 el seq. (Paris 1984)
1993
SEITLEMENT OF DISPUTES
7
is less true for global organizations with a wide field of aims and
functions, but applies for organizations which are either regional or
created for a concrete specific field of space activities.
A good example is the Convention for the Establishment of the
European Space Agency ESA. Art. XVII of that Convention provides that any
dispute between two or more Member States which is not settled by the ESA
Council shall, at the request of any party to the dispute, be submitted to
arbitration. If not otherwise agreed, the arbitration tribunal shall consist
of three members. Each party to the dispute shall nominate one arbitrator
and the first two arbitrators shall nominate the third arbitrator who shall
be the chairman of the arbitration tribunal. Member States of ESA which
are not parties to the dispute may intervene in the proceedings with the
consent of the arbitration tribunal if it considers that they have
substantial interest in the decision of the case. The arbitration tribunal
shall determine its seat and establish its own rules of procedure. The
award of the arbitration tribunal shall be made by majority of its members
and this award shall be final and binding on all parties to the dispute and
no appeal shall lie against it. Thus, the ESA Convention provides for a
typical arbitration procedure as it has been and is used in other fields of
international law between states and in international business relations
between private enterprises.
Arbitration is also the chosen method of dispute settlement for
ESA's external contracts. Art. IV of Annex I to the ESA Convention grants
ESA a far-reaching immunity from jurisdiction and execution, but Art. XXV
of the same Annex provides as follows:
1. When concluding written contracts, other than those
concluded in accordance with the Staff Regulations, the
Agency shall provide for arbitration. The arbitration clause
or the special arbitration agreement concluded to this end
shall specify the law applicable and the country where the
arbitrators sit. The arbitration procedure shall be that of
that country.
2. The enforcement of the arbitration award shall be
governed by the rules in force in the state on whose territory
the award is to be executed.
ESA practice has complied with this ruling: The "General Clauses
and Conditions for ESA Contracts" have continuously, including their
latest Revision 5, included a mandatory arbitration clause which, if no
other arbitration is foreseen in the specific contract, refers to the
Arbitration Rules of the International Chamber of Commerce in Paris.
An example of a global international organization with a dispute
settlement procedure is presented by the INTELSAT Convention. The
Convention rules as fOllows in this respect:
8
JOURNAL OF SPACE LAW
Vol. 21. No. I
Art. XVIII
(Settlement of Disputes)
a) All legal disputes ansmg in connection with the
rights and obligations under this Agreement orin connection
with obligations undertaken by Parties.... or between
INTELSAT and one or more 'parties. if not otherwise settled
within a reasonable time. shall be submitted to arbitration in
accordance with the provisions of Annex C to this Agreement.
This ruling is supplemented by a provision for non-mandatory arbitration
for other disputes in the same Article:
Any legal dispute arising in connection with the rights
and obligations under this Agreement or the Operating
Agreement between one or more Parties and one or more
Signatories may be submitted to arbitration in accordance
with the provisions of Annex C to this Agreement. provided
that the Party or Parties and the' Signatory or Signatories
involved agree to such arbitration.
The details regarding the arbitration procedure are then found in
Annex C to the INTELSAT Convention; Art. 3 of that Annex rules that the
INTELSAT Assembly of Parties selects II persons to be members of a Panel
from which presidents of tribunals shall be selected. Art. 7 provides for
confidentiality of the proceedings and Art. 13 provides that the decision of
the arbitral tribunal is binding. Though INTELSAT therefore has a rather
sophisticated dispute settlement machinery available. it should be added
that, in practice. an arbitration procedure never was conducted. as I know
very well since I am a member of the INTELSAT Panel myself.
4. Disputes Between Private Enterprises
Disputes between private enterprises in connection with space
activities have in the past mostly occurred. because private enterprises
delivered products and services as subcontractors or consortium members
for space activities of states or international governmental organizations.
With the growing direct participation of private enterprises in space
activities disputes are bound to occur also in this context. In relative
perspective. dispute settlement plays a greater role for private enterprises
than for state institutions. because private enterprises do not have
available diplomatic and political means and because private enterprises
rely much more on calculating the exposure to. costs and risks on the
fulfillment of contractual obligations and. if necessary. on the enforcement
for the other to fulfill the contract or pay damages. For dispute settlement
between private enterprises regarding their activities for space or in space
mostly the same legal sources and criteria are relevant which play a role in
1993
SEITLEMENT OF DISPUTES
9
the business cooperation and contractual relations between private
enterprises in other areas of business.
The basic option available to private enterprises is that between
adjudication by state courts and arbitration. While adjudication by courts
is available without any specific agreement between the parties,
arbitration is only mandatory if chosen by the parties in an arbitration
agreement or in an arbitration clause in a contract. In business relations
between private enterprises, arbitration is more and more the preferred
method of dispute settlement both at the national and international level.
At the national level, normally companies choose the arbitration
rules of national arbitration institutions such as the American Arbitration
Association (AAA)9 in the United States and the German Institution of
Arbitration (DIS)10 in Germany. In international business contracts,
contractual practice mostly chooses the arbitration rules of the
International Chamber of Commerce (ICC)11 in Paris, of the London Court of
International Arbitration (LCIA).12 and of the United Nations Commission
for International Trade Law (UNCITRAL) 13 or of national institutions in
certain preferred states such as Switzerland, Austria, and Sweden. While
arbitration institutions will offer, in addition to their arbitration rules,
certain administrative services to ensure that the arbitral procedure can
be conducted effectively, not seldom the parties also choose ad hoc
arbitration. In this latter case they would have to agree on provisions
regarding all important details of the arbitral procedure within their
contract or could agree on an UNCITRAL Arbitration Clause, because the
UNCITRAL Arbitration Rules have been elaborated by experts from
industrialized and developing countries to assure an effective procedural
framework for ad hoc arbitration. Finally, it may be mentioned in this
context that with the growing popUlarity of arbitration. many further rules
9
The AAA has several arbitration rules for various kinds of disputes at the
p.ational level and separate rules specifically for international cases.
10
The Deutsche Institution fUr Schiedsgerichtsbarkeit (DIS) has one set of
rules (in German and English) applicable both to national and international
disputes.
11
ICC arbitration is the most widely llsed in international business relations
and is available already for more than 60 years.
12
The LelA is an international arbitration institution with headquarters in
London, Users Councils in the various regions of the world and rules for arbitration
conducted anywhere in the world.
13
The UNCITRAL Arbitration Rules have been developed by practitioners from
industrialized and developing countries. As they are made for ad hoc arbitrations
which are not administered by a specific institution, they provide for an "appointing
authority" in case problems arise regarding the appointment of the arbitrators. An
adapted version of the UNCITRAL Rules has also been used by the Iran-United States
Claims Tribunal at The Hague.
10
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and institutions of arbitration have been created in recent years both at
the national and international level most of which, however, have very little
or no acceptance in international contract practice and therefore exist
more or less only on paper without actual cases being conducted.
5. Concluding Remarks
On the basis of these short considerations regarding the settlement
of disputes on space activities and on the basis of the material and
information collected over recent years in publications and meetings, one
may come to the following conclusions:
While certain regional and specific international instruments of
codified space law provide for an efficient dispute settlement machinery,
mostly choosing arbitration, most areas of space law, though codified on
many other aspects, lack such a machinery or at least lack provisions for
mandatory binding dispute settlement.
As more and more practical disputes have to be anticipated in the
exploration and use of outer space by a growing number of states,
international organizations and private enterprises. frameworks for
effective dispute settlement will have to be developed at the international
level in the near future.
This may be less necessary for commercial space activities,
especially as far as the participation of private enterprises is conc"erned,
because the international business community has developed and used for
many years international commercial arbitration as the preferred method
of dispute settlement. The space industry and state institutions active in
commercial space activities including international organizations like ESA
are already using this option as well.
TOWARD A CLARIFICATION OF THE TERM "SPACE OBJECT'
AN INTERNATIONAL LEGAL AND POLICY IMPERATIVE?
Stephen
Gorove"
A.INTRODUCTION
Notwithstanding the remarkable achievements of the U.N.
Committee on the Peaceful Uses of Outer Space (COPUOS), as reflected in
the drafting of five main space treaties, commonly known as the Outer
Space Treaty,l the Rescue Agreement,2 the Liability3 and Registration
Conventions 4 and the Moon Agreement,S a number of crucial concepts and
terms
like
"space object," "outer space,t'
and "launch" remain only
partially clarified while
many
others,
including "space debris,"
"astronauts." "personnel" and "procurement" remain undefined.
There can be little doubt that a clarification
of concepts and
phrases used in
major space agreements and other international
instruments constitutes an important aspect of legal development which
will have to be addressed by lawyers and policy makers in order to allay
•
Chairman, Editorial Board, JOURNAL OF SPACE LAW; Director of Sp~ce Law and
PoliCY Studies; Emeritus Professor, University of Mississippi Law, Center; Vice
President International' Institute of Space Law; International Astronautical
Federation and International Law Association Representative, -U.N. Committee on the
Peaceful Uses of Outer Space; ,Member. International Academy of Astronautics;
Associate Fellow, American Institute of Aeronautics and Astronautics.
1
Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27.
1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205 (entered into force for the
United States Oct. 10, 1967) [hereinafter "Outer Space Treaty"].
2
Agreement on the Rescue of Astronauts, the Return of Astronauts. and the
Return of Objects Launched into Outer Space, April 22, 1968, 19 U.S.T. 7570, T.I.A.S.
No. 6599, 672 U.N.T.S. 119 (entered into force for the United States Dec. 3, 1968)
[hereinafter "Rescue Agreement"].
3
Convention on International Liability for DCi:mage Caused by Space Objects.
March 29, 1972, 24 U.S.T. 2389, T.I.A.S. No. 7762, 961 U.N.T.S. 187 (entered into
force for the United States Oct. 9, 1973) [hereinafter "Liability Convention"].
4
Convention on the Registration of Objects Launched into Outer Space. opened
for signature Jan. 14, 1975, 28 U.S.T. 695, T.I.A.S. No. 8480, 1023 U.N.T.S. 15
(entered into force for the United States Sept. 15, 1976) [hereinafter "Registration
Convention"].
5
Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies - adopted by the U.N. Gen. Assembly on December 5, 1979, opened
for signature on Dec. 18, 1979. entered into force July 11, 1984 (not in force for the
United States), U.N. Doc. A/RES/34/68 (1979) [hereinafter "Moon Agreement"].
11
12
JOURNAL OF SPACE LAW
Vol. 21, No.1
lIegal uncertainty, a serious potential impediment to the prudent
involvement of private enterprise in space activities.
The purpose of this presentation is to focus solely on some
significant issues and related policy considerations pertaining to the
notion of "space object" and associated with the aforementioned five space
treaties. The term "space object" is central to the international law of
outer space and the policies and laws relevant to its application will
become more crucial with the anticipated expansion of space activities
associated with the building of the US/International Space Station and the
contemplated moon and Mars missions in the next century. Individuals and
organizations, both public and· private, engaged in space activities will
have to know what their rights and responsibilities are when dealing with
objects in outer space. They will have to know whether to regard a
particuJarobject in a given set of circumstances as a space object because
significant legal consequences, particularly with respect to liability for
damage, follow from such determination. 6
B. PARTIAL DEFINITION OF "SPACE OBIEcr" AND THE ISSUES IT RAISES
While the major space law treaties frequently use the phrase "space
object," unfortunately, only a partial definition may be found in the
Liability and
Registration conventions, both of which state that the term
"space object" includes "component" parts of a space object as well its
"launch- vehicle" and "parts" thereof'?
The fact that the partial definition of "space object" refers back to
itself when speaking -of "component parts" of a "space object" and "its"
launch vehicle leaves the fundamental issue of what is or is not a space
object or under what circumstances an object becomes or ceases to be a
"space object" and the question of the applicability of the relevant space
treaty provisions unanswered, thereby necessitating a systematic analysis
of the various scenarios in which the issues may arise. Before embarking on
such a detailed review of the notion of "space object," it may be appropriate
to address ourselves, first of all, to two initial issues raised by the partial
definition, namely: (a) the question of its applicability to all of the main
space treaties and (b) the question of the meaning of "component parts" and
6
While occasional definitions of the notion of "space object" may be
encountered in the scholarly literature since the dawn of the Space Age, it was not
until the Montreal IISL Colloquium in 1991 that. under 'the chairmanship of this
writer, a special session was devoted to "Definitional Issues in Space Law" which
inter alia also touched upon issues relating to space objects. See Karl-Heinz
Bockstiegel, The terms "Appropriate State" and "Launching State" in the Space
Treaties, 34 PROC. COLLOQ. L. OUTER SPACE 13 (1992); Bin Cheng, "Space Objects."
"Astronauts" and Related Expressions. id. at 17; HE Qizhi. Review of De/initial
Issues in Space Law in the Light of Development of Space Activities. id. at 32;
Vladimir Kopal, Issues Involved in Defining Outer Space, Space Object and Space
Debris. id. at 38; William B. Wirio, Space Debris and Space Objects, id. at 45.
7
Liability Convention, art. I(d), Registration Convention, art. I(c).
1993
CLARIFICATION OF THE TERM "SPACE OBJECT"
13
"parts" with special attention to the issue of what constitutes "space
debris,"
(a) Applicability of the Partial Definition of "Space Object"
to all of the Space Treaties
The first question that comes to mind in connection with the
Liability and Registration conventions'
partial definition -- that a space
object includes its component 'parts as well as the launch vehicle and parts
thereof -- is whether such a definition is also applicable to the other
space treaties. The answer to this query is likely to be in the affirmative.
the
For one thing,
there is no indication in the Outer Space Treaty and
Rescue and Moon agreements or in their travaux preparatoires that the
launch vehicle and parts thereof or the component parts of a space object
would not be regarded as space objects. For another, it may be pointed out
that the Outer Space Treaty speaks of liability for damage caused by a
space object or its "component parts,,,g thereby implying the inclusion of
such parts in the notion of space object in the particular context. Also, the
Rescue Agreement refers to component parts 9 and it would appear
untenable, for instance,' for a state party to argue that the launch vehicle is
not a space object and deny its return in a given situation on that ground.
(b) Meaning of "Component Part" and "Part" with Special
Attention to Space Debris
It is the authoritative choice by policy makers that determines in
what situations damage caused by space objects will entail international
liability and the scope and extent of such liability. Thus a determination
of whether to regard an object in a given set of circumstances as a space
.object or a part of it and impose liability for damage caused by it refiects
an antecedent policy choice which should be kept in mind throughout the
ensuing discussion.
Reducing the policy considerations to a textual legal analysis, since
a space object under the partia1 definition includes its "component parts"
as well as the "launch vehicle and parts thereof," it appears necessary to
determine what can be regarded as a component part and a part. Pieces,
fragments and other substances of ·a space object, would normally be
regarded as parts of that object.
Thus the basic issue arising from the
partial definition of a space object is whether the phrase "component part"
is to be equated with the term "part." Can any part of a space object be
regarded as a component part, or, to put it differently, are all parts of a
space object necessarily component parts?
Admittedly, the term "component part" has a distinct meaning and
it may be legitimately argued that the drafters of the Liability Convention
by their definition regarded only "component parts" and not all "parts" of
8
9
Outer Space Treaty, art. VII.
Rescue Agreement, art. 5.
14
JOURNAL OF SPACE LAW
Vol. 21, No.1
a space object as being subject to the constraints of the Convention.
However forceful this argument may be at first sight, the fact remains that
the quoted definition itself speaks not only of component parts but also of
parts. when it makes reference to the lannch vehicle and "parts" thereof. It
would appear unsound and nnworkable within the context of the Liability
Convention to regard any "part" of the launch vehicle as a space object and,
at the same time, to assert that only a "component" part and not just any
"part" of a spacecraft is to be taken as a "space object. "10 There is no
indication that the drafters ever intended to make such distinction when
they fortnulated the partial definition of a space object. This conclusion is
also reinforced by state practice to date. To the knowledge of this writer,
whenever there was a question of liability arising from the fall of space
debris on earth, the issue of whether the debris was a component part or
just a part of a space object with the idea of possibly denying liability in
the latter case has never been given consideration.
Of course, as a practical matter, it is highly unlikely that the state
of registry or launching authority would request the return of worthless
fragments of a space object, particularly since such a party would have to
bear the expenses associated with the recovery and return of such
fragments. At the same time, it is quite conceivable that a request would be
made for the retnrn of a valuable component part.
The Liability and Registration conventions' provisions that the
space object includes its component parts has also brought to the fore an
important question in connection with the US/Intemational Space Station.
The issue that policy makers faced was whether such a station should be
conceived as a single space object with the various elements being regarded
as the object's component parts or whether it should be taken to constitnte
a cluster of different space objects requiring separate registration. The
latter had notable relevance in connection with the exercise of jurisdiction
and control. This matter was settled in the US/Intemational Space Station
Agreement which provides for separate registration of each of the flight
elements supplied by the partners'! 1
An issue closely associated with component parts and parts is
•whether debris, which may result from the break-up, deterioration, loss or
abandonment of a space object, is a space object. If space debris is
regarded to be a space object or a component part of such an object or
10
For a discussion of this issue, see STEPHEN GOROVE, DEVELOPMENTS IN
SPACE LAW - ISSUES AND POLICIES 151-52 (1991).
11
See art. 5 of the Agreement Among the Government of the United States of
America, Governments of Member States of the European- Space Agency, the
Government of Japan, and the Government of Canada on Cooperation in the Detailed
Design, Development, Operation, and Utilization of the Permanently Manned Civil
Space Station. Signed September 29, 1988, in Washington, D.C. (hereinafter
US/lnternational Space Station Agreement). For a text of the Agreement, see UNITED
STATES SPACE LAW - NATIONAL AND INTERNATIONAL REGULATION, Sec. II. A. 22 (Stephen
Gorove ed., 1982-1993).
1993
CLARIFICATION OF THE TERM "SPACE OBJECT"
15
happens to be its
launch vehicle or a part of it, under the Liability
convention the launching state's international liability would be absolute
in case damage was caused by it on earth and would be based upon fault if
damage occurred in space.1 2
To date, there has been no general agreement
in the scholarly
literature on the issue whether the space debris is to be regarded as a
space object. Some notable space law writers maintain that space debris is
not to be considered a space object or a part of it.1 3 This 'would mean that
a space object which malfunctions or cannot be controlled any more, like a
broken part, would no longer be regarded as a space object or a part of it
and, as a result, any damage caused by such debris. would not fall under the
provlSlons of the Liability Convention. Such a pOSlllOn appears to run
counter to the intention of the drafters of the Liability Convention and can
hardly be supported by rational arguments. As Bin Cheng quite correctly
observes, fragments of a space object are treated as space objects both in
the Liability Convention and the Rescue Agreement.1 4
While it is difficult and somewhat risky to attempt to provide a
workable definition of space debris, the latter may be looked upon as a no
longer functioning, no longer controlled, non useful or abandoned space
object or a part of such an object, when no change can reasonably be
expected in these conditions in the foreseeable future.1 5 Under such a
definition, every bit of space debris is a space object or a part of a space
object but every space object is not necessarily space debris. However, as
with any definition, here also care should be exercised in its application.
For instance, should a space object be branded
immediately as "space
debris"
with whatever legal consequences may follow from such
determination •• when a loss of radio contact and control occurs? Most
likely not. Also, it should be noted that the space treaty provisions which
are currently applicable to space objects do not appear to place any
12
13
Liability Convention, arts, II and III.
See, for instance, HE Qizhi. Review of Definitial Issues in Space La~ in the
Light of Development of Space Activities, supra note 6. at 35; In Wirin's view, "space
objects and components" should be distinguished from small pieces and fragments of
debris which are not capable of reentering the atmosphere and should not be
regarded as space objects or components. See William B. Wirin, Space Debris and
Space Objects, supra note 6, at 50.
14
Cheng states that "Fragments of a space object that fall on the earth are
certainly treated as parts of that space object, and are given exactly the same status
as the whole object, were the object to corne back in one piece .... Nothing suggests
otherwise. or that shattered fuel tanks or flakes of paint from space objects in outer
space should be treated any differently." Bin Cheng. "Space Objects," "Astronauts"
and Related Expressions, supra note 6, at 24.
15
Stephen Oorove, Space Debris in International Legal Perspective, 32 PROC.
COLLOQ. L. OUTER SPACE 97 (199); Ct. International Academy of Astronautics,
Committee on Safety, Rescue and Quality,
Position Paper on Orbital Debris, August
27, 1992, at 1.
16
JOURNAL OF SPACE LAW
Vol. 21, No.1
limitation arising out of the kind and size of such an object, whether
controlled or uncontrolled.
The issue of the nature of space debris is also significant because
under the Outer Space Treaty ownership of objects launched into outer
space is not affected by their presence in outer space. 16 At present, there
is no right to remove no longer functioning (uncontrolled) and even useless
space objects without permission, unless legally justified under the rules
of international law governing self defense. It is doubtful that a potential
(not actual) threat to one's own functioning space object or one's space
activities, would be considered as sufficient justification for such a
removal. However, if space debris is not a part of an object launched into
outer space, including objects landed or constructed on a celestial body,
the ownership provisions of the Outer Space Treaty would not be applicable
to it, though conceivably ownership rights could still be asserted albeit
with less legalistic justification.
The conclusion that emerges from the foregoing discussion is that
the Liability Convention is clearly applicable to damage caused by space
the international community should
debris and that de lege ferenda,
address the all-important issue to determine in what situations and under
what conditions could space debris be lawfully removed from outer space
bearing especially in mind the Outer Space Treaty's stipulation that, in the
absence of contrary agreement, the state of registry retains jurisdiction
and control over an object launched into outer space and that ownership of
such objects is not affected by their presence in outer space.
C. ISSUES RAISED BY SPACE TREATY REFERENCES TO OBJECTS OTHER THAN "SPACE OBJECTS"
Apart from "space object," the treaties also use such phrases as
"objects launched into outer space,,17 or "into earth orbit or beyond," 18
or placed "in orbit around the Earth," 19 or "around or other trajectory to
or around the moon,,20 and other celestial bodies within the solar
system. 21 They also speak of "objects landed or constructed on a celestial
body," 22 and an occasional reference may also be found to "man-made
space objects,,23 and a variety of other objects.
The panorama of additional phrases dealing with objects in the
five space treaties and the possible future scenarios that they may imply
16
Outer Space Treaty, art. VIII.
17
18
Id. at arts. VII and VIII; Registration Convention, Preamble.
Registration Convention, art. II.
Outer Space Treaty, art. IV, para. 1.
Moon Agreement, art. 3, para. 2.
19
20
21
22
I d. at art. I, para. 1.
Outer Space Treaty, art. VIIl.
23
Moon Agreement, art. 3.
1993
CLARIFICATION OF THE TERM "SPACE OBJECT"
17
call for a consideration of a number of significant legal and policy issues,
a clarification of which may shed light on the notion of "space object" and
its applicability in the context of the space treaties. These issues may be
conveniently discussed under the following headings: (a) the relevance and
purpose of "launching," (b) the pre-launch and landing phases, (c) outer
space, (d) objecis landed or constructed on the moon or other celestial
bodies, (e) extraterrestrial objects and (f) stations and habitats in free
space. Lastly, a brief reference will be made to
(g) the notion of an
"object. "
(a) Relevance and Purpose of "Launching"
The space treaties occasional allusion to "objects launched" or the
"launching" of an object makes one wonder whether the act of launch or
launching is an essential prerequisite for an object to be regarded as a
space object. The space treaties do not define "launching" or "launch" apart
from a stipulation in the Liability Convention that the term "launching"
includes "attempted launching."
This issue will assume particular relevance in' connection with the
advent of the aerospace plane which is expected to take off as a
conventional airplane without being launched and may reach outer space.
Would such a vehicle have to be "launched" to be regarded as a space
object?" Should the fact of launching make a difference? Is the meaning of
"launch" crucial?
Should the aerospace plane be regarded as a space
object throughout its flight, or more precisely, should the Liability
Convention's provision be applicable to the flight of the aerospace plane in
the airspace or in outer space?
Obviously, in the absence of an authoritative determination, several
conjectures may be envisaged. The policy choice may well be not to apply
space laws to an aerospace plane and adopt the functional approach if the
vehicle is used in the course of a point-to-point transportation on earth
even though during its flight, it may reach the fringes of outer space.
Another possibility would be to apply provisions of space law while the
plane is in outer space. Admittedly, such a solution· would require a
clarification of the boundary line where outer space begins and the line
where airspace ends. 24
If the term "launch," that is, the manner in which the object
ascends is not crucial in determining whether to regard the aerospace
plane as a space object, one may use the term take-off or "lift-off" which
could conceivably be applied to both the aerospace plane and the shuttle.
What appears important, however, is that the act of launching in the sense
of lift-off or take-off or its "attempt" must in fact take place before an
object may be regarded as a space object, assuming of course that the
24
For a detailed discussion of the legal and policy choices associated with the
aerospace plane, see Stephen Oorave, Legal and Policy Issues of the Aerospace Plane,
16 J. SPACE L. 147 (1988).
18
JOURNAL OF SPACE LAW
Vol. 21, No.1
purpose of the intended activity was to put the object in orbit around the
earth or beyond and there was a realistic expectancy of achieving it. If,
under such circumstances, the launch or lift-off is attempted but fails and
the object does not reach outer space, the
respective
space treaty
provisions regarding liability for damage and the return of space objects
would stilI be applicable. For the same reason, sounding rockets which are
not iaunched with this required purpose would not be regarded as space
objects.
Launching· may take place from land, water, or even from the
airspace as recently demonstrated when a B-52 released a Pegasus rocket
in the air carrying a sateIIite into outer space. Karl-Heinz Btickstiegel
suggests among severaI. possible alternatives that one might consider the
start of the airplane already as the beginning of the launch so that the state
from whose territory this start was effected would be regarded as the
launching state. 25 However, it is more likely that, in the absence of
contrary understanding, the state from the airspace of which the object was
launched by the airplane would be the launching state.
Another issue which may be raised in connection with launching is
whether the launch from a celestial body or from free space would entail
the application of the discussed space treaty provisions. Inasmuch as the
provisions of several space treaties refer to objects launched "into" outer
space, strictly speaking there would be no such occurrence since the object
would be launched "in" and "from" outer space and not "into" outer space.
Would damage done by such objects on the moon and other celestial bodies
in the course of human intervention call for the application of the space
treaties?
The answer to this question may not be as significant as it
appears to be. Liability in such a case under the provisions of the Liability
Convention would be predicated on fault and such' liability would likely
exist even without the provisions of the space treaties. Of course, whatever
advantages a recourse to the Liability Convention may carry, would be lost
if the objects are not considered to be space objects.
(b) Pre-launch and Landing Phases
Another aspect of the definitional issue of space object relates to
the pre-launch and post-landing or disembarkation phases, that is the
relevance of time and place.
Does the location of an object or the time
element make any difference with respect to the occurrence of damage
caused by the object in determining liability? To put it differently, at what
point in time and place does the Liability Convention's provision become
operational or at what point should we regard an object, such as a launch
vehicle, to have become a space object or have ceased to be one for purposes
of the Convention?
Should it always be regarded as a space object and
25
Karl-Heinz Bockstiegel. The terms "Appropriate State" and "Launching
State" in the Space Treaties - Indications of State Responsibility and Liability for
State and Private Space Activities. 34 PROC. COLLOQ. L. OUI'ER SPACE 15 (1992).
CLARIFICATION OF THE TERM "SPACE OBJECT"
1993
19
damage caused by it always entail liability irrespective of where and when
the damage occurs?
Should it make any difference whether the damage
causing object is in a manufacturing plant, or in a test facility, or in the
process of being transported to the launch site, or being assembled but not
installed there as yet? An additional question is whether such flight
includes the space object's ascent and descent through the airspace,
Under the definition of a proposed Draft for a Convention on
Manned Space Flight an object with a human being on board intended to be
launched into space would be regarded from the point of embarkation
through the launch, in orbit, deorbit, reentry, landing, and disembarkation
phases as a manned space object. 26 While the use of the phrase
"embarkation" and· "disembarkation" may be questioned,27 the only query
that arose during the drafting process was in relation to the possible use of
the term "post-landing" rather than "disembarkation." However,
"disembarkation" appeared to be a better term considering that reference
to a "post-landing" phase might have implied an extension of the time
period after landing without any specific limitation.
For certain purposes, such as the exercise of jurisdiction and
control, the fact of embarkation and the closing of the doors may be
significant as provided, for instance, in the application of U.S. territorial
jurisdiction and control. Nonetheless, there is no indication that the
drafters intended to have the space treaty provisions apply to objects prior
to a launch from earth or an attempted launch. Thus an abortive fire on the
launch pad, even after embarkation, prior to an attempted launch would
appear to preclude the application of the Liability Convention. Acts
preparatory to the launch, including the embarkation and count-down, by
themselves, would not be regarded as an attempted launch. Only when the
engines fire and the lift-off is endeavored would it appear to be an
attempted launch. In this connection, it may be important to stress that for
it cannot be
an act to qualify as an attempt, it must be intended;
absolutely impossible of commission; it must involve "perpetration" or
"execution rather than mere "preparation;" it must come "close to
success" and the "means" used must be adequate.
If space law were to be applied to the flight of an aerospace plane, it
would have to be determined at what point in time (take-off, closing of the
doors, etc.) such laws would apply to it. Short of an authoritative
II
26
See art. I, para. 2 of the Draft for a Convention on Manned Space Flight
(hereinafter "Draft") which was prepared by three leading institutions in Germany,
the former Soviet Union, and the United States and submitted by this writer to the
U.N. Committee on the Peaceful Uses of Outer Space in 1991 on behalf of the
International Institute of Space Law. For a text of the Draft, see 18 1. SPACE L. 209
(1990).
27
See comments of Judge Guillaume, in MANNED SPACE FLIGHT - LEGAL ASPECfS IN
TIlE LIGHT OF SClENTlFIC AND TECHNICAL DEVELOPMENT, PROCEEDINGS OF AN iNTERNATIONAL
COLLOQUIUM, COLOGNE, MAY 20-22, 1992, at 201 (Karl-Heinz Bockstiegel ed., 1993)
20
JOURNAL OF SPACE LAW
Vol. 21, No.1
determination to the contrary, most likely a lift-off would have to be
attempted in order to have relevant space treaty provisions applicable to it.
In sum, from the viewpoint of the lex lata, it may be better to regard
the launching and attempted launching rather than the embarkation and
closing of the doors as the crucial element in the determination of
international liability. Such a position appears to be more in line with the
space treaty provlSlons which only refer to launching and attempted
launching and make no reference to embarkation, disembarkation, closing
of the doors and similar expressions. 28
In light of the preceding considerations, it would also appear that,
prior to a launch or attempted launch, the launch vehicle and its parts
should not be regarded as space objects, just as an object or component
parts of an object would not become space objects prior to a launch or an
attempted launch. They would not qualify for such characterization in the
manufacturing plant or test facility or on their way to the launch site or at
any time, prior to an attempted launch.
Does it make any difference if the damage occurs at the moment or
shortly after the object's return to earth or in the course of its subsequent
refurbishment? At what point in time and place does the Liability
Convention'S provlSlon cease to be operational or at what point should we
regard an object, such as a launch vehicle, to have ceased to be one for
purposes of the Convention? The Outer Space Treaty and the Rescue
Agreement speak of "landing" of astronauts and "return" of objects to earth
and it may be assumed that such landing and return was intended to serve
as the cut-off point. 29 De lege ferenda another more specific event, like
"opening of the doors," or perhaps the Draft's provision designating
disembarkation 30 as a point of termination for manned space flight may he
considered for possible adoption by international policy makers.
(c) Relevance of Outer Space
When the space treaties speak of objects "launched," they
occasionally add the phrase "into outer space" or "in orbit around the
earth," or "into earth orbit or beyond,"31 and, thereby, they raise the
question whether it is necessary for the object to reach "outer space." In
other words, should one draw the conclusion that, for an object to be
regarded asa space object, it must have reached outer space or be or remain
in orbit around the earth. This would mean that, if the object is no longer
28
Cf. Stephen Gorove, Environmental Risks Arising from Space Activities, in
ENVIRONMENTAL ASPECTS OF ACTIVITIES IN OUTER SPACE - STATE OF TIlE LAW AND MEASURES
OF PROTECfION 130 (Karl-Heinz Bockstiegel ed., 1989).
29
E.g. Outer Space Treaty, arts. V and VIII~ Rescue Agreement, arts. I, 2, 4,
and 5.
30
Draft, art. I, para, 2.
31
E.g. Outer Space Treaty, arts. IV, VII, VIII; Registration Convention, art. II.
1993
CLARIFICATION OF THE TERM "SPACE OBJECT"
21
in orbit, it would cease to be a space object and, as a result, the relevant
provisions of the Liability Convention and the Rescue Agreement would not
be applicable to it.
Such position would appear to run contrary to the
intention of the drafters of the space treaties which speak of liability for
damage caused by a space object on tIie surface of the earth. How could
there be international liability if the object would have ceased to be a
space object upon its return to earth?
Some space law commentators, invoking Article II of the
Registration Convention, appear to suggest that an object is not a space
object unless it is already in earth orbit or beyond. 3 2
However, the
particular provision was not intended to define the space object but only to
determine what objects were subject to the requirement of registration.
An object not only can be but is in fact a space object during its flight from
earth to outer space and back throughout the indicated phases and it
remains a space object during its flight in outer space. Such an object
would not be subject to the requirements of registration until it is in earth
orbit or beyond. The Registration Convention stipulates that when "a space
object is launched into earth orbit or beyond" the launching state shall
register the object. 33
This statement makes it clear that the object to
which the registration applies is already a space object, otherwise
reference would have been made to an "object" and not to "a space object."
Also, the reference in Article IV to space objects concerning which the
state of registry has previously transmitted information, and which have
been and are no longer in earth orbit,34 implies that such objects remain
space objects irrespective of whether they are in orbit· or not, and so also
during their phase of descent.
Another issue which has relevance to outer space
in connection
with the characterization of objects and the attendant policy alternatives
is whether there can be any objects which are launched from earth into
outer space or reach outer space as a result of human intervention and are
not to be regarded as space objects. Are personal belongings which
accompany an astronaut during the flight into and in outer space
considered space objects? Possibly so. Does damage caused by such objects
make it subject to the application of the relevant provision of the space
treaties and do such objects have to be returned to the launching authority
under the Rescue Agreement? The space treaty provisions do not appear to
shed light on these issues and in the absence of contrary provisions, it
would appear that such objects would be regarded as space objects.
32
HE Qizhi. Review of Definilial Issues in Space Law in the Light of
Development of Space Activities, supra note 6, at 32.
33
Registration Convention, art II.
34
Id. art. IV, para, 3.
JOURNAL OF SPACE LAW
22
Vol. 21, No.1
(d) Space Objects Landed on the Moon or Other Celestial Bodies
In connection with the moon and other celestial bodies, some of the
space treaties
make
occasional references to a variety of other objects
snch as, for instance, "objects landed or constructed on the Moon,"
"vehicle ll35 and "space vehicle, .. 36 "supplies,,,37 "equipment." lIinstalla~
tions," "facilities, .. 38 and "manned and unmanned stations. ,,39 The
envisaged scenarios that may be associated with these references raise a
number of additional issues which have a bearing on the notion of "space
obje"ct. "
First and foremost, the question arises whether an object launched
from earth would lose its legal characterization as a space object upon its
landing on the moon, or Mars or another celestial body? Would a moon rover
or other movable objects, equipment or supplies originating from the earth
cease to be space objects and would the relevant space treaty provisions not
be applicable to them following such landing? Or would such objects
.
continue to remain space objects and, if so, for how long?
While there is a temptation to argue that such objects should no
longer be regarded as space objects after their landing or during their stay
on a celestial body, it is somewhat doubtful that, in the course of a mission
to Mars, a temporary landing is likely to be regarded as a sufficient
justification for taking the objects out of the operation and application of
the relevant provisions of the space treaties.
A contrary position would
have to come to grips with the issue whether such objects following their
landing would again become space objects after their relaunch. The Draft
left open the question whether a space object remains a space object
following its landing on the moon or another celestial body.40 Logically,
and by definition, a flight would come to an end after landing if flight is
understood in the conventional sense of the word. Also, a space flight from
a celestial body would presumably involve similar phases of embarkation,
launch, in orbit, deorbit, and disembarkation, as a flight does from earth to
outer space. Notwithstanding the logic of this reasoning, looking at this
issue from the vantage point of an earthly perspective, states parties to a
convention similar to the Draft who participate in a manned expedition to
Mars, may not regard a temporary stopover on the moon or another celestial
body as necessarily suspending the operation of the convention. For
purposes of both the uniform application of the law as well as reason and
logic, it would appear preferable to regard such objects as space objects
during such stay.
35
36
37
38
39
40
Moon Agreement, art. 12.
Outer Space Treaty, arts. V and XII; Moon Agreement, arts. 8 and 12.
Moon Agreement, arl 12.
Outer Space Treaty, arts. IV and XII; Moon Agreement, arts. 3, 8, 10 and 12.
Moon Agreement, art. 9.
Cf. Draft, art. I, para, 2.
1993
CLARIFICATION OF THE TERM "SPACE OBJECT"
23
In general, two things may be emphasized which may be important
for the policy choice: the length of time during which space objects are
utilized after their landing on the moon or another celestial body and the
associated preferability of making a break with what may likely entail an
endless extension of the Liability Convention's application to situations
for which it was originally not intended. Admittedly, authoritative policy
makers would have to make a determination.
Another issue that arises apart from the landing and length of stay
of a space object on a celestial body relates to the possibility of a moveable
space object being made into or becoming part of an immovable structure in
the form of a station or facility on a celestial body. In such a case, it is
doubtful that the policy choice would be to continue to regard such objects
as space objects.
(e) Extraterrestrial Objects
The Moon Agreement envisages the eventual exploitation of "natural
resources" of the moon and other celestial bodies under the auspices of an
international regime41 and also makes reference to "samples of mineral
and other substances,,42 which may be used for scientific purposes. The
possible use of extraterrestrial materials may also be envisaged by the
Outer Space Treaty's reference to objects "constructed" on celestial
bodies. 43 If such natural resources and other extraterrestrial materials
cause damage at the time of their collection or at a later stage in the course
of their use in support of a space mission or upon their return, should
liability attach on the basis of the application of the provisions of the
Liability Convention or the Outer Space Treaty? Should such objects be
required to be returned to the launching authority in appropriate
instances under the provisions of the Rescue Agreement? Briefly put,
should they be regarded as space objects in given contexts?
As to objects not originating from the Earth, there is some doubt
that the provisions of the major space treaties applicable to space objects
could be properly invoked. The Outer Space Treaty, the provisions of which
were further developed by the Liability Convention, speaks of the "return"
of space objects to earth, thereby implying that the objects had to be on the
earth beforehand to be regarded as space objects. Up to now, the issue has
not been pressing but it could assume significance in future scenarios
involving the exploitation of natural resources in space and the use of
extraterrestrial materials in support of a space mission.
In the course of the construction of objects on the moon or another
celestial body, the question may also arise whether such movable materials
made in part of terrestrial and in part of extraterrestrial materials will
41
42
43
Moon Agreement, art. 11, para. 5.
Id. at art. 6.
Outer Space Treaty, art. VIII.
JOURNAL OF SPACE LAW
24
Vol. 21, No.1
remain space objects or whether they will lose their legal identity? If the
notion of space object were extended to cover extraterrestrial objects
handled by humans as space objects for purposes of the relevant space
treaty provisions, then all such
composite materials would automatically
In the absence of such policy
be regarded as space objects. 4 4
determination, the likelihood is that the space treaty provisions relating to
space objects would not be applicable to them.
(f) Stations and habitats in free space
The reference to "stations" in the Outer Space Treaty and to
"manned and unmanned stations in the Moon Agreement45 relate to such
structures located on the moon or another celestial body. However, legal
and associated policy issues may further present themselves in conjunction
with the building of space stations and habitats in free space in which both
terrestrial and extraterrestrial materials may be used.
There is little doubt that the US/International Space Station built of
terrestrial materials would be regarded as a space object or cluster of
space objects or parts of a space object to which the space treaty provisions
pertaining to such objects would be applicable. This conclusion is fully
substantiated by the relevant provisions of the US/International Space
Station Agreement. 46
Even if some extraterrestrial materials -were used,
the likelihood is that this fact alone, would not change the outcome.
Permanent habitats in free space, as in L-S, which could
conceivably be built in whole or in part from materials not originating
from the earth may require further scrutiny and consideration by policy
makers,
This is not a far-fetched possibility in the 21st century. For
instance, Professor O'Neil from Princeton University worked on the design
of a mass driver to be located on the moon for the purpose of hurling lunar
materials into space which could be used when building a habitat in free
space, possibly for manufacturing solar power satellites. 47 Even if the
II
44
Bin Cheng favors an expansion of the definition of space objects to include
"Stations and Installations constructed by humans in outer space or on the moon or
other celestial bodies." See Bin Cheng, "Space Objects," "Astronauts" and Related
Expressions. supra note 6, at 24.
45
Outer Space Treaty, art. XII,; Moon Agreement, art. 9.
46
See, e.g., US/International Space Station Agreement, supra note 11, at arts.
2, 5 and 17.
47
See G.K. O'NEIL, THE HIGH FRONTIER, HUMAN COLONIES IN SPACE (1977); idem,
The Colonization of Space, PHYSICS TODAY 32 (Sept. 1974); For a comprehensive
discussion of the international legal implications of solar power satellites, see
STEPHEN GOROVE, SA1ELLITEPOWER SYSTEMS - iNTERNATIONAL AGREEMENTS (U.S. Dept of
Energy, 1978). For a recent discussion, see Eilene Galloway, The Legal and
Regulatory Framework for Solar Power Satellites, in SOLAR POWER SATELLITES - THE
EMERGING ENERGY OPTION 183 (peter E. Glaser et al. eds., 1993).
CLARIFICATION OF THE TERM "SPACE OBJECT"
1993
25
materials originate exclusively from the Earth, the long term extension of
the applicability of the Liability Convention may have to be reexamined.
(g) Notion of an "Object"
Finally a word may be added relating to the connotation to be
attached to the word "object." This term in every day usage refers to a
person or material thing that can be seen or touched and is stable in
form. 48 Seen in such a context, solar energy, electromagnetic impulses,
cosmic and other forms of radiation, as well as nontangible biological or
chemical agents, are not regarded as objects. At the same time,
installations, equipment, materials, payloads, fragments and debris would
be included in the category of objects or parts of objects.
Notwithstanding the seeming simplicity of the foregoing
differentiation, questions may arise. for instance, with respect to the
applicability of the Liability Convention's provisions when damage is
caused by atomic radiation, or solar energy. Under the relevant
stipulations, damage must be caused by a space object49 and if nuclear or
solar energy does not qualify as an object how can liability arise? In such
cases, the object regarded to be causing the damage is the nuclear power
source from which the radiation emanates, or the solar power satellite
which transmits solar energy to earth via microwave or laser.
D. CONCLUSION
The preceding overview and analysis is intended to shed light on
the multifaceted issues presented by a single but central notion in the
space law literature, that of "space object." The discussed scenarios
underscore the need for further delineation of the term, especially in
situations when different people can legitimately and, in some cases with
equally strong logic, maintain divergent views. Definitional clarifications
involve policy choices which decision makers will have to make in light of
their value judgments on behalf of the countries they represent.
From among many possible alternatives, space limitations only
permit a few examples of definitions, the variations being indicated by
additions or omissions of words in square brackets and parentheses.
Within the context of the main space treaties, a space object may be defined
as "an object launched or attempted to be launched in orbit around the
earth or beyond [and includes stations, installations and other objects
(whether terrestrial or extraterrestrial) constructed or used by humans in
outer space, including the moon or another celestial body]. Such object [or a
part of it] is a space object [or a part of it] from the time of its launch or
attempted launch, through its ascent from earth to outer space or while in
48
Cf. TIlE RANDOM HOUSE DICTIONARY OF TIlE ENGLISH LANGUAGE 993 (unabridged
ed. 1966).
49
Liability Convention. arts. II and III.
26
JOURNAL OF SPACE LAW
Vol. 21, No. I
outer space, as well as during its orbit, deorbit, reentry and landing on
earth. [In case of a manned space flight, a space object (or a part of it) is a
space object (or a part of it) from the time of embarkation (closing of the
door) to that of disembarkation (opening of the door) on earth.] [A space
object (or a part of it) landed on the moon or another celestial body which
becomes part of an immovable structure ceases to be a space object (or a
part of it).]
Associated with the definitional clarification is the issue whether
to split the single legal notion of "space object" into several well defined
categories, such as "space station," "space object" in the narrower sense,
and "space debris," as suggested by Vladimir Kopal. In his view, such a
split will become sooner or later inevitable.5 0
Even with the adoption of one of the intimated definitional
alternatives, there will be many remaining issues which may need further
consideration. Of course, it is well to keep in mind that there is no foolproof definition to take care of all possible scenarios which may arise in
the future. Nonetheless, even a limited removal of some of the uncertainties
associated with the notion of "space object" would go a long way in allaying
concerns of private enterprise when undertaking space actIvIties. In
addition, a clarification of some of the authoritative policy choices would
also help in eliminating possible sources of disputes.
It is fortunate that the International Institute of Space Law (IISL)
has already taken the initiative and devoted one of its sessions during the
Montreal Colloquium to a discussion of definitional issues of space law.
This was followed up during the World Space Congress in Washington, D.C.
by an IISL Board decision to establish a Working Group to elaborate on such
issues and receive input in the form of comments and suggestions at future
colloquia.
The clarification of definitional issues will be ever more pressing
as we expand the horizons of space exploration and use in the 21st century.
With a reduction of international tensions and the disappearance of the
cold war psychology, the unique opportunities of world-wide international
cooperation make the objective of achieving consensus on the scope and
meaning of undefined or only partly defined legal terms less difficult to
It is this writer's belief that the time has arrived to advance
achieve.
suitable proposals to clarify key notions. and phrases of space law for
consideration by national and international institutions and policy
makers. It is hoped that efforts in this direction will continue unabated
and will eventually lead to positive results.
50
Vladimir Kopal, Issues involved in Defining Outer Space, Space Object and
Space Debris, supra note 6, at 41.
EVENTS OF INTEREST
A. Past Events
Reports
International Space Cooperation: Learning from the Past, Planning for the
Future, Kona (Hawaii), 13-15 December 1992.
Since the end of the Cold War, international cooperation has come to
be seen by many as an element that should now figure more prominently in
space endeavors. Some contend, indeed, that this is the only option if some
of their nations' more visible space activities are to continue at present
levels, let alone expand.
This is probably true, yet cooperation is far easier to preach than
to put into practice, given the interdependencies between strategies and
actors that constrain space policy; there may well sometimes be persuasive
reasons for a country 1lQ1. to cooperate in certain sectors. Nations and space
agencies thus face difficult a priori and practical questions on the extent
to which any general policy favoring cooperation could or should be
expected to apply, as well as on the mechanisms through which it is to be
promoted and implemented.
To seek possible answers, or at least to start the process of finding
them, the American Institute of Aeronautics and Astronautics (AIAA)
organized this workshop as the last major event of the International Space
Year.
Sixty of the world's leading authorities on the subject of
international space cooperation from twelve countries were invited to
participate.
These included senior representatives from space agencies,
industry, user organizations and the university and the consultancy
sectors, as well as the former heads of a number of space bodies and
President Bush's executive secretary to the National Space Council.
The workshop's findings and recommendations were drafted for
(and have since been communicated to) relevant government ministers and
other Bpace decision-makers internationally. The aim is to give the subject
of international space cooperation a higher place on the international
policy agenda.
Participants were divided into five working groups:
Space Science
Space Applications
Space Exploration
Supporting Infrastructure
Policy and Approaches.
The bulk of the work took place in these groups, although there
27
28
JOURNAL OF SPACE LAW
Vol. 21, No. 1
were plenary sessions, at which the group chairpersons reported on the
progress made, and participants reviewed the workshop's outcomes.
Two
debates were also held, in order to focus minds on essential issues of
international cooperation, one on the necessity for "leadership" in
cooperation, the other on whether the time for conducting large space
endeavors on a national basis had passed.
The working groups relied for their work on nine background
papers by participants, analyzing particular ingredients or experiences of
international cooperation.
These are not reproduced in the published
workshop report mentioned at the end of this note, although copies can be
obtained from the AIAA. They were:
"Space Cooperation in the Post Cold War Era: The Best of Times,
the Worst of Times" (Barnes, R.J.R.)
"International Cooperation in Ruman Exploration" (Bekey, 1.)
"Space Station -- An International Venture" (Cline, L.F.R., and
van Reeth, G.P.)
• "International Cooperation in Space: An Introduction to Space
Law" (Galloway, E.M.)
"Space Science -- A Model for Success" (Johnson-Freese, J.)
• "Development of Space Cooperation: The We~tern European Case
Study" (Madders, K.J.)
"Environmental Monitoring
New Opportunities for Cooperation" (McElroy, J.H.)
"Lessons in International Space Cooperation:
The Case of
Satellite Communications" (Pelton, J.N.)
"Space Launch Services:
The Competitive Playing Field"
(Smith, M.S.).
The reader is referred to the published report for a fuller account
of the many questions and viewpoints exposed during discussion.
In
summary, the interchanges included critical examination of a range of
infrastructure, mission and policy aspects and options, with Earth
monitoring and Moon/Mars exploration receiving the most attention.
Geopolitical factors occupied considerable debate in the Policy and
Approaches group, others took stock of why the Space Exploration
Initiative had failed, and elsewhere topics bounded from such concrete
considerations as the harnessing of existing launch capacities to drivers
for eventual Mars colonization.
As to the workshop's recommendations, these can be recapitulated
briefly and represent the proceedings' main product:
Commencement of an international dialogue, at high political
level. on common policies and strategies regarding cooperation,
together with early work towards eliminating obstacles to such
cooperation.
EVENTS OF INTEREST
1993
29
Promotion of further Earth environmental monitoring
cooperation, especially via a new coordinating mechanism to serve
data users, and expansion of cooperation via existing mechanisms
in other targeted areas of space applications such as navigation,
disaster mitigation and even telecommunications (e.g., cooperation
to permit international multipoint-to-multipoint connectivity and
for the conduct of pilot projects).
Information sharing by space agencies on their space science
project selection and funding processes.
Establishment by heads of space agencies in "spacefaring
nations" of a common, cooperative space exploration strategy.
Use of existing fora such as UNCOPUOS and the Space Agency
Forum to address the overall use of space assets and associated
organizational aspects from now on. Creation of a new framework to
promote cooperation may though prove necessary. In this context, a
World Space Conference, at political level, may be appropriate,
although an alternative might be an international inter-agency (i.e.)
non-political) coordinating group.
The last recommendation is of particular note for readers of the
During the 1980's (and in fact as a political response to the U.S.
"Star Wars" program), the Soviet Union proposed at the UN the idea of a
World Space Organization. Since the end of the Cold War, this idea has
been adopted by others and given new life. Workshop participants, for the
most part at least, did not favor creating Ii formal organization in the
foreseeable future. Rather, it would seem that the process of space policy
making involving the major space powers and others would require a highly
flexible mechanism.
Based on precedents in Europe and more widely,
several participants felt that a conference, which could meet at significant
points at ministerial level, might provide the right kind of mechanism. It
could in particular offer the advantage of integrating discussion at the
political and program levels. Some participants felt this proposal went too
far, hence the inclusion of inter-agency coordination as an alternative
mechanism. The lack of consensus on this vital question of approach was
not, though, a negative aspect of the workshop; rather, it is indicative of the
difficulties alluded to above and helped to define the terms on which
future debate will take place.
A further point that should be mentioned here is that the workshop
agreed that the "entire international space community needs to
participate" in developing concepts, ideas and mechanisms for cooperation,
and that the AIAA and other similar organizations internationally should
work to achieve this participation. Though not adequately reflected in the
recommendations, participants noted too in this regard the importance of
engaging in a greater dialogue with the world public.
In conclusion, one may say that,· apart from its recommendations,
JOURNAL.
JOURNAL OF SPACE LAW
30
Vol. 21, No.1
the workshop' provided a good opportunity to clear some of the fog that has
hindered vision in the post-Cold War period.
This included exposing
larger geopolitical choices that will inevitably influence the prospects for
expanded international space cooperation.
Can, for example, ambitious
Earth-oriented and exploration programs in the space field provide a
bonding element between the world's technostructures and peoples, and
provide a new impetus to the Space Age more in line with its proclaimed
ideals? Or are we doomed to see the Cold War era followed by a new
competitive phase, this time based on the economic contest of large trading
blocs and implying a form of reconstructed nationalism in space policy?
Further workshops will follow but the choices clearly concern us
all.
Dr. Kevin J. Madders
Chambers of Robert Webb, QC., London,
c/o Cremades et Associes, Brussels, Belgium
U.N. Scientific and Technical Subcommittee on Outer Space Holds Annual
Meeting in New York
The Scientific and Technical Subcommittee of the United Nations
Committee on the Peaceful Uses of Outer Space held its thirtieth annual
session at United Nations Headquarters in New York from 16 to 25
February 1993.
The Subcommittee, during its two-week session, continued its
consideration of various questions relating to international cooperation in
outer space activities, including the special theme for 1992, "Space-based
communications: Expansion of current services and increased
understanding of new systems and services." The 53 Member States of the
Subcommittee now include the Czech Republic, replacing Czechoslovakia,
Yugoslavia, while formally remaining a member of the Subcommittee, was
not represented in this session following the General Assembly's
resolution that Serbia and Montenegro do not represent Yugoslavia.
Following the trend of recent years, East-West conflicts have essentially
disappeared, while North-South differences on economic issues remain but
are discussed in a non-confrontational spirit.
The session included a symposium, organized by COSPAR and IAF
at the request of the Subcommittee, on "Space-Based Communications:
Global Systems and New Services." The symposium included presentations
on developments in international telecommunication policy through the
International Telecommunication UIiion (lTU) , on the expanding services
planned by INTELSAT and INMARSAT, and on the use of satellite
•
For reference for this workshop. see AIAA. INTERNATIONAL
SPACE
COOPERATION: LEARNING FROM THE PAST, PLANNING FOR THE FUTuRE (L. David and J. Pedr6n
eds., 1993).
1993
EVENTS OF INTEREST
31
communications for development in China.
Technical presentations
described proposed constellations of low-orbiting satellites providing
global telephone service through hand-held receivers, the use of
communication satellites for disaster warning and relief, and the potential
of communication satellites to support rural medical services in developing
countries.
In addition to the technical presentations in the symposium,
Member States arranged a number of special presentations, including a
presentation on space debris by a specialist from France, a presentation
and film by astronaut Dr. Mae C. Jemison on her recent Space Shuttle
mission, a presentation on the activities of the Russian Space Agency by
the Deputy Head of that agency, and presentations on human space flight,
satellite radio broadcasting and small scientific satellites. Members of the
Subcommittee also provided information on their national activities in the
fields of space transportation, astronomy, planetary exploration,. and space
biology and medicine.
United Nations Programme on Space Applications
One of the major objectives of the United Nations in the field of
space is to promote access by developing countries to the benefits of space
activities. The Programme on Space Applications of the Office for Outer
Space Affairs, under the direction of the Subcommittee, organizes short
training courses and workshops on applications of space technology for
economic and social development for the benefit of developing countries.
The Programme also administers fellowships for long-term education in
space-related disciplines in Brazil, China and the institutions of the
European Space Agency, and provides developing countries, on request,
with advice on the organization and planning of national and regional space
applications programmes.
The Subcommittee reviewed the reports of the 1992 Programme
activities, including training courses. workshops and conferences covering
various aspects of remote sensing. satellite communications and space
science, held in Colombia. Costa Rica, Ecuador. Germany, Kenya, Korea,
Sweden and the United States. The Subcommittee approved the Programme
for 1993 including meetings on space applications in the fields of
communications, disaster m1l1gation, geology, sustainable development,
environmental monitoring and basic space science. The Subcommittee
expressed its appreciation for the contributions of the host countries and
other supporting countries that had made these activities possible, but also
expressed its concern that the resources available to the Programme were
not sufficient to meet the needs of the developing countries for such
assistance.
The Programme provided consulting services in support of regional
space efforts, including supporting the use in North and West Africa of'
remote sensing data received by ESA ground stations, promoting regional
use of the Cotopaxi. Ecuador remote sensing ground station, and assisting
1
32
JOURNAL OF SPACE LAW
Vol. 21, No.1
in the preparations for the Second Space Conference of the Americas, to be
held in Santiago, Chile, in April 1993.
An initiative being developed as part of the Programme on Space
Applications is a plan for regional centres for space science and
technology education, particularly in the field of remote sensing, with an
emphasis on educating university teachers in developing countries who can
pass their knowledge and skills on to large numbers of students. A number
of developing countries have offered to host and support such centres, and
missions to evaluate the potential host institutions in each region are being
undertaken with the participation of potential supporting countries or
organizations.
The Subcommittee expressed its support for this initiative
and urged support from other countries.
The Subcommittee also noted the publication by the Office for Outer
Space Affairs of an updated version of "Space Activities of the United
Nations and International Organization," describing the space-related
programs of the organizations of the United Nations system and the
organization and activities of international and regional space agencies.
Use of Nuclear Power Sources in Outer Space
Following the adoption of a set of principles on the use of nuclear
power sources (NPS) in outer space by the Committee and the General
Assembly in 1992 (resolution 47/68), the Subcommittee and its Working
Group on Nuclear Power Sources held preliminary discussions regarding
When the principles were adopted, it was
revision of the principles.
recognized that new applications of nuclear power in space were emerging
and that international principles on radiological protection were evolving,
and it was agreed that the principles applied only to electric power
generation for non-propulsion purposes.
The principles therefore
provided that they should be reopened for revision within two years.
This agreement to begin reconsideration of the principles right
away was largely in response to a United States request in 1991 to change
principle 3, containing technical criteria for safe use of NPS, after it had
been agreed upon in draft form. The United States had proposed that the
international principles, like the NPS safety criteria used in the United
States, should be based on minimizing the probability of radiological
exposure of the public or the environment to as low as reasonably
achievable, rather than establishing specific criteria that might exclude
useful activities of very low risk.
Other delegations had insisted that after 13 years of negotiation, it
was important to adopt a set of principles quickly on the basis of the
agreed draft texts, even if imperfect, with the understanding that
consideration of proposed revisions could begin immediately. The United
States ultimately agreed to the adoption of the principles by consensus on
that basis.
During the meeting of the Subcommittee, the United States did not
EVENTS OF INTEREST
1993
33
make specific proposals for revision of principle 3, but there was an active
discussion of the question by the United Kingdom, France, Germany,
Canada and others. There appeared to be general agreement that it would
not be desirable to renegotiate the whole set of principles, but that
incremental revisions to specific provisions should be considered.
The
discussion covered the need for further definition of terms such as "highly
reliable" and "low-probability accident," principles covering other uses of
NPS in space, and the relation between space NPS principles and nuclear
safety and radiological protection principles being developed by the
International Atomic Energy Agency (IAEA) and the International
Commission on Radiological Protection (ICRP). The Subcommittee agreed to
continue discussions on the issue next year.
Remote sensing and Environmental Monitoring
Remote sensing remained a largely uncontroversial topic, as it has
been since the adoption in 1986 of the "principles relating to remote
sensing of the Earth from space". The United States, France, the European
Space Agency and Japan encouraged international use of the Landsat, SPOT,
ERS-l and JERS-l remote sensing satellites.
Many developing countries
emphasized the actual and potential importance of satellite remote sensing
to their development, but noted that the commercialization of remote
sensing and the expansion in the number of systems, each with different
technologies, were raising financial obstacles to the use of satellite data
for resource management and environmental monitoring in their countries.
The Subcommittee reaffirmed its view that remote sensing data should be
available to all countries at reasonable cost and that there was a need to
provide assistance to meet the needs of the developing countries.
The Geostationary Orbit and Space Communications
The Subcommittee continued its consideration of the geostationary
orbit without making any progress towards resolving the different views on
the subject.
A number of developing countries reiterated their concern
over the increasing congestion of the orbit and called for a special
international regime for coordinating use of the orbit and ensuring
equitable access by all States, particularly developing countries.
Developed countries reiterated their position that the question of access to
the geostationary orbit was being effectively addressed through the
procedures of the International Telecommunication Union (ITU) and that
improving communications technologies were increasing the effective
capacity of the geostationary orbit to meet the needs of all countries.
Space debris
The question of space debris has been a matter of growing concern
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JOURNAL OF SPACE LAW
Vol. 21, No.1
to many countries over the last few years, but the Subcommittee has not
been able to agree to add the question to its formal agenda, largely due to
the United States, which has felt that formal consideration at the
international level would not be productive until further research had been
carried out at the national level.
This year, a number of delegations,
including Germany, Pakistan and
the United Kingdom submitted
information based on national research on space debris, including studies
of the risk of collisions between space debris and nuclear power sources.
The German delegation felt that the Subcommittee could usefully spend
several years exchanging information in this way in order to develop
common understandings that would provide a basis for subsequent
elaboration of an international agreement to restrain the accumulation of
space debris. It also noted that continuing accumulation of debris could
eventually result in a chain-reaction cascade of collisions producing such
vast numbers of fragments that space activities would become impossible,
and that such an eventuality had to be prevented.
The Subcommittee heard a technical presentation by a specialist
from the French Centre National d'Etudes Spatiales on measures being
undertaken to reduce space debris, including venting of fuel tanks and
discharging of batteries after use to prevent explosions, the development of
satellite deployment mechanisms that would not release bolts, clamps or
other small hardware in orbit, hardening of spacecraft against very small
debris, and the possibility of deorbiting satellites at the end of their lives
or raISing geostationary satellites into higher disposal orbits. The
presentation noted that some of those measures were being implemented
without major costs, while others had substantial costs, often in the form of
a reduction of the operational lifetimes of satellites.
In its report, the Subcommittee reaffirmed the importance of
reducing the generation of space debris and the need for further research
on the question and for improved technology for monitoring debris in
space. Many delegations reiterated their views that the question should be
placed on the Subcommittee's agenda beginning next year so that formal
considerations could begin, but again there was no consensus. Finally, the
Subcommittee requested the Committee to consider, at its- session in June,
whether to put the question of space debris on the agenda of the
Subcommittee for its 1994 session.
Third UNISPACE Conference
Following a proposal made by India at last year's session, the
Subcommittee discussed the possibility of holding a third United Nations
Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE
III). Developing countries strongly supported the proposal, calling for the
conference to be held in a developing country in 1995. Developed countries
did not oppose the proposal, but felt that more consideration of the purpose
and organization of the conference were necessary before any decision
1993
EVENTS OF INTEREST
35
could be made and that 1995 was not realistic.
The Subcommittee
recommended that the Committee consider the objectives and organization
of such a conference.
Ralph Chipman
Chief, Committee Services and Research
UN Office for Outer Space Affairs
Commercial and Industrial Applications in Space: Insurance Implications
Assicurazioni Generali S.P.A. of Trieste, one of the most important
insurance groups in Europe, has recently organized its 7th biannual
international conference. This conference, held in Rome, Italy on March 1112, 1993, marks one of the most significant appointments for all those
familiar with space insurance: insurers, first of all, but also clients and
brokers totalling more than 350 people from 25 nations. In the two-day
,program a number of issues were examined, including market trends,
industry requirements, economic results and legal implications of space
insurance contracts and related claims.
Insurance is generally reputed to be a boring subject. Space Law,
on the other hand, has sometimes been regarded only as an academic,
After having listened to the space lawyers'
speculative exercise.
contributions one should quickly get rid of their doubts, if he had any:
insurance is by no means a boring subject nor is space law a speculative
academic exercise. They are a simply fascinating, extraordinary and highly
demanding arena where hundreds of million of dollars are spent in complex
projects which might spectacularly, yet painfully, vanish into the air
leaving technical speculations on the ground open as to what happened and
sometimes, harsh legal disputes on whose fault it was.
Space Insurance
What does "Space Insurance" refer to? The limited scope of this
report does not allow any detail but some basic hints may be dropped about
the environment where this game is played.
Typically a space insurance coverage is meant to indemnify the
owner of a telecommunication satellite during all the sequential phases of
its launching, transportation and placement in (most of the times)
geostationary orbit at about 36,000 kms from the earth and during its
"operational life" against the risk of loss or physical damage to it.
We can, therefore, ideally isolate three main time-frames when the
satellite is exposed to some sort of "homogeneous risks": the "pre-launCh"
phase (transportation from the manufacturer's premises to the launch site
and preparation to launch); the "launch phase" (from ignition of the launch
vehicle transporting the satellite to the completion of in-orbit tests in
geostationary orbit); the "in-orbit phase" (from beginning of commercial
operations to the "natural end of life", i, e. the time when the station
36
.JOURNAL OF SPACE LAW
Vol. 21, No.1
keeping fuel on board the satellite is exhausted and it is placed in the socalled "graveyard orbit").
All these phases are intimately connected and
the relevant insurance contracts must carefully match one another, because
the insurers might not be the same and, after the satellite is launched, it is
often uncomfortable to go out on the spot and investigate the "fortuitous
event" which has caused the damage at a· given moment in titne!
Apart from the main "preperty coverage" on the satellite itself,
there are other policies which are currently offered by the space insurance
market: for example the "third party legal liability" policy, which covers
the liability for damage to third parties. Another one indemnifies the
insured for "loss of revenue and extra expenses", in case of interrupted
communications leading both to cancellation of contracts with the various
broadcasters who use the satellite's channels and to extraordinary
expenses to reactivate the service.
Litigation and legal issues arising from insured space activities
The legal session at the Generali Space Conference received
contributions from some of the most renowned U.S. law firms specializing
in space insurance disputes: "Haight, Gardner .. Poor -& Havens, New York"
(Mr. Nesgos), "Pino& Associates, New York" (Mr. Pino), "Mendes & Mount,
New York" (Mr. Tucker), "Schnader, Harrison, Segal & Lewis, Washington"
(Mr. Smith).
The four gentlemen representing these law firms were wittily
introduced by Mr. Harold Caplan, a consultant from International
Insurance Services, London.
He emphasized how grateful the audience
should be for having been offered the opportunity of listening to a
selection of extremely expensive lawyers with· a highest sense of their own
time-value.
The basic comments expressed in this legal section of the
Generali Space Conference will be highlighted in the ensuing summary.
Mr. Nesgos concentrated on his experience gained in negotiating
space contracts, i.e. satellites and transponders (channels) purchase
. agreements, launch services agreements and space insurance policies.
In
his opinion ambiguity in contract wording is the greatest contributor to
space contract litigation. Ambiguity is certainly the reason why so many
warranty disclaimers used in contracts between space manufacturers and
service providers, on the one side. and their customers, on the other, have
also been challenged in courts. The satellite manufacturer and the launch
service provider have long been seeking to limit or disclaim their liability
towards their customer, the satellite owner, on the assumption that space is
a high risk area of endeavor. Liability limitation provisions are therefor
used in these contracts so that the customer undertakes to assume damage
to his own property and to waive any claim against any other participant.
Furthermore, he has to ensure that his own sub-contractors adhere to the
same provisions. However, this interparty waiver of liability approach is
sometimes implemented with excessively restrictive language, sometimes
with an overly inclusive one.
1993
EVENTS OF INTEREST
37
Mr. Tucker analyzed some recurring problem areas in both launch
and in-orbit coverages which have given rise to space related insurance
disputes.
The "insuring agreements" are the core of a space policy. There
the parties "meet their minds" and its there that, in case of dispute, the
existence of mutual assent is to be ascertained. Unfortunately not always
is this mutual assent clearly expressed in the policy wording. Sometimes
the language used is conditional in nature, like in the following example:
"underwriters will indemnify the assured if the power output on the
transponder (i.e. channel) fails to meet a level to be later agreed." On the
other hand, in the sentence "Underwriters will indemnify the assured if
the power output on the transponders falls below a usable level" the true
intent of the parties does not appear 'as univocal.
A typical provision in a space policy is the "due diligence" clause.
Typically the Insured warrants to "use due diligence and do and concnr in
doing all things reasonably practicable to avoid or diminish any loss under
the policy". But what is "reasonable" in space activities? For the Leasat 3
satellite, marooned in low orbit, a total loss was paid by all insurers but
one, who was brought to court by the insured.
A jury in California
determined that it would have been reasonable to attempt an unprecedented
salvage mission via a Space Shuttle to repair the stranded satellite, with a
cost approaching one-quarter of the total cost of the satellite itself, and
rejected the claim.
Mr. Pino, in turn, reviewed the most recent developments in U.S.
litigation. He criticized the fact that, although the technology utilized in
commercial space ventures has adyanced at an almost unimaginable pace in
recent years, disputes involving insurance coverage, property damage,
cross-waivers of liability, subrogation, salvage, product liability and
choice of law have been resolved so far by courts using traditional legal
principles that are often hundreds of years old. He advocated recourse to
the arbitration procedure for any disputes related to commercial space
ventures. The arbitrators should be experts in the field and the procedure
would probably be more expeditious and less expensive than traditional
litigation.
Mr. Pino quoted the Martin Marietta v. Intelsat case where the
latter claimed that, as a result of Martin Marietta's negligence and gross
negligence, the Intelsat VI satellite did not reach its intended orbit. The
losses claimed totaled 400 million U.S. dollars. The focus of the claim
turns around the existence of a valid express waiver of liability and the
possibility to impute a cross waiver provision based on the Commercial
Space Launch Act, as amended in 1988, thereby barring Intelsat claim.
This claim was decided by relying upon the holding in a case where the
plaintiff was injured when he parachuted into power lines and therefore
sued the operator, despite having signed a waiver of liability just prior to
departing on his parachute adventure. It is difficult to hide, however, that
there is very little similarity between the relative bargaining position of
Intelsat and of the parachuter!
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JOURNAL OF SPACE LAW
Vol. 21, No. I
A different solution was found to resolve another well-known space
insurance claim. In July 1990, ten days before the original launch date,
the hook of a launch pad crane fell onto Insat I D's C-Band antenna and the
spacecraft had to be removed and repaired. At that time, the risk of loss
was still with Ford Aerospace, the spacecraft manufacturer. Insures paid
the loss and were subrogated in Ford Aerospace's rights. A claim was then
filed by various London Underwriters against McDonnell Douglas, which
had the responsibility of the pre-launch and launch operations.
The
Federal Judge determined that he was bound to apply state law in existence
at the time the land where the accident occurred was ceded to the
government, and that happened to be the Florida State law of the 1950's!
Then McDonnell Douglas, through arbitration in London, sought to recover,
from the Indian Space Department, their customer, what they had to pay to
the above underwriters, based on the indemnity provisions in their
contract.
To complete the circle, the Indian Space Department itself
commenced arbitration proceedings in New Delhi against Ford Aerospace
on the grounds that Ford Aerospace had agreed, in the spacecraft purchase
agreement, that it would not seek indemnity from any party in the event of
a loss. Eventually, and with no surprise, a global settlement was reached.
But this example clearly illustrates how carefully the commencement of
legal actions should be considered by wise undertakers of space endeavors!
Mr. Smith took a wider perspective and considered some more
general issues affecting the Space Industry with possible insurance spinoffs. Orbital arc availability is, according to Mr. Smith, no longer just a
hypothetical problem. There might soon be cases where a satellite is
drifted on purpose into the operational orbital slot of another, causing
unprecedented interference problems for the broadcasting of the latter
with very little remedies to the injured party. This scenario would call for
a different definition of "total loss" (currently limited to physical damage
to the satellite), a new interpretation of the "due diligence clause" (should
it include the commencement of legal action to defend the insured's right
in front of the international telecommunication authorities?), and perhaps,
new commercial demands to satisfy the need to actually buy orbital slots
from commercial firms!
On the other hand, all these future private issues might be
confronted with political and regulatory uncertainties. There is a growing
influence of export governmental control and foreign policy over decisions
involving private East-West Joint Ventures for commercial space launches.
Eastern companies will most likely provide hardware and launch
capabilities and western partners will contribute investment and
marketing experience.
But these undertakings will surely face new risks,
which they will hardly be able to control:
space products import and
export regulations, programme delays, protectionist measures, dumping
practices.
1993
EVENTS OF INTEREST
39
Conclusion
Among the many issues raised during the last Generali
International Conference one point stands out clear: the space insurance
community is asked to provide its international clients with a superior
service. No doubt, only with the concurrent assistance of knowledgeable
lawyers and legal experts involved in space law, will this task be
satisfactorily accomplished, to the benefit of all interested parties!
Marco Molino
Non-Life Departments, Marketing
Assicurazioni Generali S.P.A., Trieste, Italy
U.N. Legal Subcommittee on Space Convenes its Thirty-Second Session (22
March·8 April 1993)
On 22 March 1993, the Legal Subcommittee of the United Nations
Committee on the Peaceful Uses of Outer Space (COPUOS) convened its
thirty-second session at United Nations Headquarters in New York.
The
three-week session, which ended on 8 April, was chaired once again by Mr.
Vdclav Mikulka of the Czech Republic.
The session was attended by forty-two of the 53 States members of
the Subcommittee
(Argentina, Australia, Austria, Belgium, Brazil,
Bulgaria, Burkina Faso, Canada, Chile, China, Colombia, Czech Republic
(which replaced Czechoslovakia), Ecuador, Egypt, France, Germany, Greece,
Hungary, India, Indonesia, Iran (Islamic Republic of), Iraq, Italy, Japan,
Lebanon, Mexico, Mongolia, Netherlands, Niger, Nigeria, Pakistan,
Philippines, Poland, Romania, Russian Federation, Spain, Sweden, Ukraine,
United Kingdom of Great Britain and Northern Ireland, United States of
America, Uruguay and Viet Nam); six specialized agencies and other
international organizations (IAEA, UNESCO, ITU, ESA, IAF and ILA); as
well as eight observers (Bolivia, Cuba, Kazakhstan, the Libyan Arab
Jamahiriya, Portugal, the Republic of Korea, Slovakia and Turkey).
Pursuant to the recommendations of the thirty-fifth session of
COPUOS (held in June 1992), which were endorsed by the General
Assembly at its 47th session (December 1992), the Subcommittee
reestablished working groups to consider the three substantive items on its
agenda:
(1)
Question of early review and possible revision of the
PrinCiples Relevant to the Use of Nuclear Power Sources in Outer Space
(agenda item 3).
(2)
Matters relating to the definition and delimitation of outer
space and to the character and utilization of the geostationary orbit,
including consideration of ways and means to ensure the rational and
equitable use of the geostationary orbit without prejudice to the role of the
International Telecommunication Union (agenda item 4).
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JOURNAL OF SPACE LAW
Vol. 21, No.1
(3)
Consideration of the legal aspects related to the application
of the principle that the exploration and utilization of outer space should
be carried out for the benefit and in the interests of all States, taking into
particular account the needs of developing countries (agenda item 5).
In its discussions on these three items, the Legal Subcommittee
continued to make slow and careful progress, building on the work it had
done in the previous year.
Principles Relevant to the Use of Nuclear Power Sources in Outer Snace
Under the chairmanship of Mr. Helmut Freudenschuss of Austria,
the Working Group began with gusto its consideration of the question of
early review and possible revision of the Principles.
There was a
unanimous expression of satisfaction that, after more than a decade of
work, the Principles had been adopted without a vote by the 47th General
Assembly. Nevertheless, there were differing views on the question of a
review and delegations expressed themselves candidly on the subject. To
facilitate matters, the Chairman suggested that the Working Group could
have a preliminary exchange of views on possible grounds for revision of
the Principles, without actually undertaking such a revlSlon, which
principle II did not· necessarily require at the current stage.
In the course of the debate on this question, some delegations
observed that the time which had elapsed between the adoption of the
Principles and the current session of the Subcommittee had been
insufficient for a meaningful assessment of the operation of those
Principles in practice and that, therefore, an actual review should be
The United
postponed until the following session of the Subcommittee.
Kingdom felt that it would be better to await the maturation of the debate
in the Scientific and Technical Subcommittee. Japan and France expressed
similar views, as did the Russian Federation, noting that it would be
essential to complete a thorough scientific and technical analysis first,
which would then provide the Legal Subcommittee with a basis for a proper
review and possible revision.
Some delegations also noted that the effect of the Principles would
be weakened if a discussion on possible shortcomings and defects was
Others, such as Brazil and
undertaken immediately after their adoption.
Mexico, believed, however, that the Working Group should indeed
undertake such a discussion right away to allow delegations to express
their views and concerns with respect to the Principles.
In order not to weaken the impact of the Principles, which were
already "soft law", some delegations suggested that an incremental
approach to revising them could be considered. The Working Group, for
example, would not reopen the discussion on the principles already
adopted, but rather, would attempt to supplement those principles with
new provisions if necessary.
The Working Group also debated the issue of principle 4 - "Safety
41
EVENTS OF INTEREST
1993
assessment", with some delegations expressing concern that this principle
did not cover cases where a State does not agree with the results of the
safety assessment carried out by a launching State in conformity with
paragraph 1, and made publicly available pursuant to paragraph 3.
Mexico believed that the question of safety assessment was closely
linked to the question of notification prior to the launching of a space
object carrying a nuclear power source. It was argued, however, that the
wording of paragraph 4 did not require the concurrence of other States with
the results of the safety assessment carried out by a launching State and,
accordingly, no provision was needed to cover the case where a State
disagreed with such results.
It was also argued that if a dispute arose
because of a disagreement with the results of a safety assessment, such a
dispute could be resolved in accordance with principle 10.
Furthermore,
if there were dissatisfaction with the results of the safety assessment on
the part of a State, that State could have recourse to the 1967 Outer Space
Treaty, under article IX, which provided for consultations concerning an
activity which may harmfully interfere with activities of other States.
The United States, observing that it was currently revising its
position on the issue, decided to make no specific proposals for the time
being.
In its conclusion, the Working Group suggested that any future
revision of the substantive provisions of the Principles should be based on
technical developments which might occur, and it was therefore advisable
to await input from the Scientific and Technical Subcommittee of the
Committee on the Peaceful Uses of Outer Space.
Definition and Delimitation of Outer Space and the Character of the
Geostationary Orbit
The Working Group on this item, reconvened under the
chairmanship of Mr. Estanislao Zawels of Argentina, discussed separately
the two aspects - the definition and delimitation of outer space, on the one
hand, and the geostationary orbit, on the other.
The Subcommittee had
before it for consideration a number of documents which had been
submitted at its previous session and in the Committee.
With regard to the definition and delimitation of outer space, the
Subcommittee focused its attention on a working paper entitled "Questions
concerning the legal regime for aerospace objects,"
which had been
submitted by the Russian Federation at the Subcommittee's 1992 session.
Although there was again very little narrowing of the differences between
those who considered the definition and delimitation of airspace and outer
space to be a practical and legal necessity and those who maintained that
there was no practical need to establish a juridical boundary between
airspace and outer space, the working paper served as a way of centering
the Subcommittee's attention on concrete issues.
In presenting the working paper, the Russian Federation explained
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JOURNAL OF SPACE LAW
Vol. 21, No.1
that the paper was of a preliminary character and had been submitted as a
stimulus for discussion which could possibly break the impasse in the
debate. In spite of its preliminary nature, however, debate on the working
paper proved to be quite constructive, yielding questions on many points of
law and giving the Subcommittee sufficient food for thought.
The view was expressed, for example, that there would stilI be the
need to resolve the question of the delimitation of airspace and outer space
because the definition of "an aerospace object" in the paper was based on
the object's potential to fly both in outer space and in airspace. It would
hardly be advisable, it was argued, to subject a flying object to different
legal regimes merely because it crossed a certain imaginary line in the
If such an approach were adopted, numerous legal
course of its flight.
difficulties would arise, concerning such areas as contractual rights,
safety rules, the status of the aircraft commander and other areas which
were now regulated under air law. It might therefore be preferable to have,
if one were needed at all, a single legal regime for aerospace objects.
Consideration would also have to be given to the passage of an object,
launched into outer space, through the airspace of foreign States.
Any principle applicable to aerospace vehicles would have to take
into account technical factors such as the launching of space vehicles and
space objects and the period they spend in airspace, aerodynamic
properties of space vehicles and space objects, questions relating to entry
into earth orbit and re-entry into the atmosphere, the flight regime for
space vehicles depending on their location, procedures and notifications of
launch. and possible revision of the registration of aerospace objects.
A "Draft questionnaire concerning aerospace objects."
was
prepared by the Chairman in consultation with a number of delegations as a
starting-point for preparing a questionnaire to be sent to Member States.
Some delegations. while welcoming the Chairman'S initiative,
suggested that the questions should be divided into two groups:
legal
questions and technical questions, and that the legal questions should be
further subdivided into de lege lata and de lege ferenda problems. Some
delegations believed that the objective of the questionnaire was not quite
clear and more refinement of the document was needed. In spite of these
reservations, however, the Working Group agreed that the questionnaire
could possibly be quite useful and that it should continue with its
finalization.
Again, this year, there was no appreciable change in the pos1l!ons
of delegations with regard to the second part of this agenda item, the
The developed countries generally continued to
geostationary orbit.
maintain that the GSO was part of outer space and therefore governed by the
sarne legal instruments, in particular, the 1967 Outer Space Treaty. Most
developing countries persisted in the view that the specific and particular
characteristics of the GSO demanded the creation of a special legal regime
to regulate access and utilization, which would take account of the needs of
developing countries.
1993
EVENTS OF INTEREST
41
assessment", with some delegations expressing concern that this principle
did not cover cases where a State does not agree with the results of the
safety assessment carried ont by a launching State in conformity with
paragraph I, and made publicly available pursuant to paragraph 3.
Mexico believed that the question of safety assessment was closely
linked to the question of notification prior to the launching of a space
object carrying a nuclear power source. It was argued, however, that the
wording of paragraph 4 did not require the concurrence of other States with
the results of the safety assessment carried out by a launching State and,
accordingly, no provision was needed to cover the case where a State
disagreed with such results.
It was also argued that if a dispute arose
because of a disagreement with the results of a safety assessment, such a
dispute could be resolved in accordance with principle 10.
Furthermore,
if there were dissatisfaction with the results of the safety assessment on
the part of a State, that State could have recourse to the 1967 Outer Space
Treaty, under article IX, which provided for consultations concerning an
activity which may harmfully interfere with activities of other States.
The United States, observing that it was currently revISIng its
position on the issue, decided to make no specific proposals for the time
being.
In its conclusion, the Working Group suggested that any future
revision of the substantive provisions of the Principles should be based on
technical developments which might occur, and it was therefore advisable
to await input from the Scientific and Technical Subcommittee of the
Committee on the Peaceful Uses of Outer Space.
Definition and Delimitation of Outer Space and the Character of the
Geostationary Orbit
The Working Group on this item, reconvened under the
chairmanship of Mr. Estanislao Zawels of Argentina, discussed separately
the two aspects - the definition and delimitation of outer space, on the one
hand, and the geostationary orbit, on the other.
The Subcommittee had
before it for consideration a number of documents which had been
submitted at its previous session and in the Committee.
With regard to the definition and delimitation of outer space, the
Subcommittee focused its attention on a working paper entitled "Questions
concerning the legal regime for aerospace objects,"
which had been
submitted by the Russian Federation at the Subcommittee's 1992 session.
Although there was again very little narrowing of the differences between
those who considered the definition and delimitation of airspace and outer
space to be a practical and legal necessity and those who maintained that
there was no practical need to establish a juridical boundary between
airspace and outer space, the working paper served as a way of centering
the Subcommittee's attention on concrete issues.
In presenting the working paper, the Russian Federation explained
42
JOURNAL OF SPACE LAW
Vol. 21, No.1
that the paper was of a preliminary character and had been submitted as a
stimulus for discussion which could possibly break the impasse in the
debate. In spite of its preliminary nature, however, debate on the working
paper proved to be quite constructive, yielding questions on many points of
law and giving the Subcommittee sufficient food for thought.
The view was expressed, for example, that there would still be the
need to resolve the question of the delimitation of airspace and outer space
because the definition of "an aerospace object" in the paper was based on
the object's potential to fly both in outer space and in airspace. It would
hardly be advisable, it was argued, to subject a flying object to different
legal regimes merely because it crossed a certain imaginary line in the
If such an approach were adopted, numerous legal
course of its flight.
difficulties would arise, concerning such areas as contractual rights,
safety rules, the status of the aircraft commander and other areas which
were now regulated under air law. It might therefore be preferable to have,
if one were needed at all, a single legal regime for aerospace objects.
Consideration would also have to be given to the passage of an object,
launched into outer space, through the airspace of foreign States.
Any principle applicable to aerospace vehicles would have to take
into account technical factors such as the launching of space vehicles and
space objects and the period they spend in airspace, aerodynamic
properties of space vehicles and space objects, questions relating to entry
into earth orbit and re-entry into the atmosphere, the flight regime for
space vehicles depending on their location, procedures and notifications of
launch, and possible revision of the registration of aerospace objects.
A "Draft questionnaire concerning aerospace objects,"
was
prepared by the Chairman in consultation with a number of delegations as a
starting-point for preparing a questionnaire to be sent to Member States.
Some delegations, while welcoming the Chairman's Inltlative,
suggested that the questions should be divided into two groups:
legal
questions and technical questions, and that the legal questions should be
further subdivided into de lege lata and de lege ferenda problems. Some
delegations believed that the objective of the questionnaire was not quite
clear and more refinement of the document was needed. In spite of these
reservations, however, the Working Group agreed that the questionnaire
could possibly be quite useful and that it should continue with its
finalization.
Again, this year, there was no appreciable change in the pos1l10ns
of delegations with regard to the second part of this agenda item, the
The developed countries generally continued to
geostationary orbit.
maintain that the GSO was part of outer space and therefore governed by the
same legal instruments, in particular, the 1967 Outer Space Treaty. Most
developing countries persisted in the view that the specific and particular
characteristics of the GSO demanded the creation of a special legal regime
to regulate access and utilization, which would take account of the needs of
developing countries.
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EVENTS OF INTEREST
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The Working Group, therefore, sought to make progress by
continuing the discussion it had begun on the basis of a "work;ing nonpaper" at its 1992 session.
Colombia submitted a working paper, which
took into account that "non-paper" as well as the suggestions of various
delegations made at previous sessions, explaining that the issue was to find
a legal solution to situations in which two or more countries claimed the
same orbital position or neighboring orbital positions, the location of
which gave rise to significant radio frequency incompatibilities or
operating restrictions, placing a country which did not have access to the
orbit or a developing country at a disadvantage compared with a country
which already did have access or a developed country. Such a regime would
apply especially to space communications services which had not been
planned with national allotments.
As usual, there was concern about the possible conflict of activities
between the International Telecommunication Vnion (lTV) and other
international bodies, including the Legal Subcommittee. Some delegations
believed that the views of lTV would be very pertinent and useful in
In their view, working
connection with the consideration of this item.
contacts with lTV were needed to ensure consistency.
Developed countries stressed that the Subcommittee had no mandate
to develop new legal principles which would lead to the establishment of a
special legal regime.
Those delegations believed that lTV was quite
successfully dealing with the various aspects of the rational and equitable
use of the GSO and that it was necessary to avoid conflict. . Developing
countries argued that the Legal Subcommittee did indeed have a mandate to
deal with all aspects of this item.
As has progressively been the case in recent years, several
members of the Working Group addressed the question of space debris and
its removal from the geostationary orbit. A number of them drew attention
to the threat posed by space debris and suggested that consideration be
given to an international agreement dealing specifically with this question.
It was recognized, however, that that would require resolving a number of
legal issues such as the definition of space debris, jurisdiction and control
over such debris and responsibility for damage caused by space debris.
In concluding its discussion, the Working Group agreed that the
preliminary exchange of views which had taken place on the basis of the
Colombian working paper had been very interesting, and provided a good
basis for future work.
Exploration and Utilization of Outer Space for the Benefit and in the
Interests of all States. Taking into Particular Account
Developing Countries
the
Needs
of
The Working Group on this item met again under the Chairmanship
of Mr. Raimundo Gonzales of Chile and continued its exchange of views
which it had begun in earnest at the previous session. This year, however,
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the Working Group moved away somewhat from the theoretical discussions
of the subject it had had at past sessions and focused on a new working
paper submitted by a number of developing countries (Argentina, Brazil,
Chile, Colombia, Mexico, Nigeria, Pakistan, the Philippines, Uruguay and
Venezuela) entitled "Principles regarding international cooperation in the
exploration and utilization of outer space for peaceful purposes."
This document, a revision of a paper submitted to the Subcommittee
in 1991, also contained a series of preambular paragraphs and a set of six
principles. It followed the same format and stressed the same issues as the
original version. According to the sponsors, the revision sought to
incorporate the suggestions and views of other delegations, which had been
expressed during the heated debate which began on this question at the
The sponsors also indicated a
1992 session of the Subcommittee.
willingness to further revise the draft principles if necessary, based on
the discussions of the current session.
The revision, however, was essentially an attempt on the part of the
sponsors to build consensus by toning down the language of the new draft.
In Principle I, for example, a new paragraph stressed that "States
are sovereign in deciding the modalities of their cooperation," in space
activities -- in contrast to the previous document which had mandated the
and is
various forms that international cooperation should take
obviously intended to alleviate some of the misgivings expressed by the
developed countries that United Nations principles would have the effect of
requiring specific kinds of cooperative programmes.
The previous reference in Principle II to the need for special
treatment for developing countries was similarly replaced by the
observation that "developing countries should benefit from a treatment
which will enable them to fully benefit" from international cooperation in
the exploration and utilization of outer space.
While there continued to be a strong divergence of views among the
members of the Working Group, particularly over the level of mandated
cooperation and the goals of such cooperation, the session's tight focus on
the principles was generally thought to have yielded
significant
progress and
marked a new phase in the Subcommittee's discussions on the issues
related to this agenda item.
Cheryl Stoute
U.N. Office for Outer Space Affairs
Legal Issues of Communication Satellites in LEO
As in prior year, once again in 1993, the IISL was instrumental in
organizing in connection with the session of the Legal Subcommittee of
COPUOS a one hour presentation of current legal doctrines and practices by
varied speakers allth~ritative in the subject matter.
This year's program focused on the "Legal issues concerning Low
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Earth Orbit Communication Satellites" and was held at the United Nations
Headquarters in New York on March 31, 1993. Under the Chairmanship of
Dr. Vaclav Mikulka of the Czech Republic, who is the present Chairman of
the Legal Sub-Committee, the discussion of this session was opened and
moderated by John B. Gantt, a Washington based lawyer who is specializing
in space and telecommunication law. He introduced the topic of the day as
an interesting opportunity for an overview of the key legal issues as seen
from diverse legal perspectives. In fact, each of the three invited speakers
gave its own views of the subject as lawyers and practitioners of a different
geographical area and facing peculiar local problems and regulations of
satellite telecommunication systems that are conceived as global.
The topic was handled by the speakers with an explanatory and
practical approach, which most benefitted the audience of UN delegations
and Secretariat, who showed appreciation for the most informative and
competent contribution offered to the reflection of the Legal Sub-Committee
and asked questions of clarification and substance.
Professor Roberl Frieden from the School of Communication of the
Penn State University presented the legal and regulatory challenges to
universal personal communications provided by Low Earth Orbiting
satellites. After a brief presentation· of the currently planned systems, he
explained how much the key legal issue in the United States is the
licensing, and the role of the FCC in taking efforts to expedite this process.
The scope of the regulatory action was explained emphasizing the
difference of classification between common and private carriers and their
conditions of access to the telecommunication market.
Such conditions
contain restrictions for non-US enterprises taking investment in US LEO
systems.
He concluded indicating with how much latitude of flexibility
and discretionary power national administration of the concerned States
will be able to agree internationally under the WARC-92 approved
schemes.
Dr. Marco Ferrazzani, lawyer with the European Space Agency,
presented some recent regulatory issues arisen in the European legal
system that are to impact on Communication satellite systems in general
and in particular on low Earth orbit systems.
The political and economical context of the European Community
was discussed as the basis and the Directives as legislative tools used in
the EEC for the present harmonization and liheralization efforts. Also in
this area the different licensing schemes of each European state appear to
prevent the establishment of a global services market and are therefore
intended to be unified under a general EEC system provided for by the
proposed Directive now under scrutiny. In essence, the new system would
allow a satellite operator to apply· and be granted a licence in one European
State to be considered valid throughout the EEC based on the principle of
mutual recognition of national auhorizations from any EEC Member State.
This fundamental legal principle will assort with the idea of subsidiary
powers granted by EEC law to the Commission of European Communities in
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the case of lack of action by a national administration.
The paper further analyzed the provisions of the Draft Directive
and called for more analysis and practice to prove the concept.
The last contribution, prepared by Said Mosteshar, Attorney in
London, was presented by Richard Mizrack since Mosteshar was unable to
attend. The paper addressed the United Kingdom perspective on two issues
of the general topic and, in particular, the impact of mobile satellite
communication system on the regulatory environment in the UK and the
ability of the authorities to exercise licensing jurisdiction.
The paper drew attention to the possible differences between
national jurisdiction when adjudicating cases based on rules of
standardization, licensing, competition and intellectual property rights.
Discussing the UK Jurisdiction, the contribution presented the audience
with the relevant provisions deriving from the UK Telecommunication acts
and licensing system, stressing how much the recent trend of policymaking is towards liberalization of services.
The other main issue raised was the interesting problem of mobile
services which has the effect of diverting the places of revenue generation
and taxation.
An operator of telecommunication services based on LEO
systems might have no physical or legal presence in the overwhelming
majority of the countries in which the revenue is generated.
This will
inevitably provoke revenue shifts and many other economic consequences.
Marco Ferrazzani
Legal Affairs Department
European Space Agency
Space Debris Mitigation and Policy Issues
At the initiative of the European Space Agency (ESA), the First
European Space Debris Conference was held in Darmstadt, Germany, from
April 5-7, 1993, gathering
251 experts from 17 countries including
China, India, Japan,. Russia, and the USA. The conference was cosponsored
by the national space agencies Agenzia Spaziale Italiana (ASI), British
National Space Centre (BNSC), Centre National d'Etudes Spatiales (CNES)
and Deutsche Agentur fUr Raumfahrtangelegenheiten (DARA).
The purpose of this First European Conference on Space Debris was
to provide a forum for the presentation of results from research on space
debris; to assist in defining future directions for research; to identify
methods of debris control, reduction and protection, and to discuss
international implications and policy issues.
In thirteen sessions more
than one hundred presentations were given, covering mostly technical
aspects of space debris but also policy issues. In addition, at the end of
the conference a round table discussion explored the possibilities to
control and regulate space debris.
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J.P. Loftus Jr. ("Debris Mitigation Policies and Practices") gave an
overview on current mitigation practices and an outlook in the future.
Spacefaring nations in response to the increasing hazards represented by
orbital debris are adopting a number of mitigation measures to protect
future spacecraft and to protect the space environment from further
degradation.
Actions to date have been procedural and passive. In the
future mitigation measures will probably require some international
agreements with the force of treaty law in order to assure equitable
competition among the current spacefaring nations and be enforceable for
new entrants.
The paper by W. Flury and D. McKnight "IAA Position Paper on
Orbital Debris" summarized the Space Debris Position Paper of the
International Academy of Astronautics. This paper, which is the result of
the effort of an ad hoc group of experts, is in the process of being approved
by the IAA. The objective of this paper is threefold. First to make clear
how significant and severe the continued placement of orbital debris into
the near Earth environment is to the future use of space for all mankind.
Second, to provide some clear guidelines as to how the international
community might wish to proceed in order to combat this growing
environmental hazard. Third, to extend discussion of the debris issue by
other international groups to exercise the techniques and dialogue
necessary to begin to formulate international agreements on this topic.
Several debris control measures are recommended for immediate
application in a first phase.
These measures focus mainly on the
prevention of debris.
The paper by G.C.M. Reijnen "Some Observations on Policy and Legal
Issues in Regard to Space Debris" reviewed policy and legal issues of space
debris. The author noted that as to legal implications, little to no advance
has been made.
A survey of existing legal instruments related to the
subject under discussion reveals that general principles of law, and in
particular general principles of international space law, if interpreted
according to their intention, might, together with the updating of some of
those principles, lead to mitigating the increase of the space debris
For example, strict interpretation of the Registration
population.
Convention 1975, article IV, par. 2, might lead States, international
organizations and private entities to enhanced awareness of the space
debris problem.
As to policy implications, the author noted that a new international
custom is, in regard to space debris, on the way of establishing itself,
namely that of consultation between states, and members of international
organizations, promoted in article IX of the Outer Space Treaty 1967. At
present, consultation between ESA, NASA, the Russian Space Agency and
organizations from Japan is taking place. Recommendations resulting from
this consultation could be useful for an international legal instrument
serving to mitigate and to prevent space debris creation.
Also, the
International Law Association (ILA) has, in its 1992 Cairo meeting,
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adopted a Draft International Instrument concerning the protection of the
environment from damage cansed by space activities.
This Draft
Instrument needs, however, further improvement, e.g. definition of space
debris. Recently, a set of principles on nuclear power sources in outer
space was adopted by the United Nations General Assembly. These
principles are, by their nature, legally non-binding.
One central issue is that of liability for damage as a consequence of
pollution by space debris.
The text of the Liability Convention 1972
article l.a. seems to be insufficient to cover the present pollution of outer
One possible means to actively engage States, international
space.
organizations and private entities to mitigate space debris, and pollution of
outer space in general, is to introduce the legal concept of risk liability,
A second
that is' liability of manufacturer and launching authority.
proposal would be the ,creation of an international fund consisting of
mandatory donations by each launching authority, the donations to be fixed
amounts of money proportional to the mass of the object to the estimated
hazardous nature of the object.
M. Benko, K.U. Schrogl and G. Gruber contributed the paper "Space
debris-legal problems to be solved within the United Nations".
The
authors are of the opinion, that space debris, as an issue of great concern to
all spacefaring nations, should be globally dealt with by the United
Nations Committee for the Peaceful Uses of Outer Space (UNCOPUOS).
National studies on space debris have been submitted to the UNCOPUOS
Scientific and Technical Subcommittee for a number of years already. As
to the legal aspects, the authors are of the opinion, that is necessary to
start the debate in the Legal Subcommittee. Legal problems which can be
dealt with immediately with respect to space debris are the definition of
space debris and its incorporation into the already existing definition of
space object in international space law. The term space debris could be
referred to as a space object regardless whether it still exists as a whole or
whether it is fragmented to any size, in the event that such an object is
non-functional and the.re is no reasonable expectation of it assuming or
resuming its function.
Such definition shows that the difference between
space debris and a functioning space object has not to be seen primarily in
the fragmentation of a space object, but in the decisive criterion whether a
space object (as a whole or fragmented to any size) is functional or not.
Another question which could be dealt with is state liability in
case of damage caused by unidentified space debris reentering the Earth's
atmosphere.
As to questions relating to measures to be taken to avoid the
generation of space debris as well as measures of protection against damage
caused by debris, these problems have to be studied by the UNCOPUOS
Scientific and Technical Subcommittee first. Only then the results of such
studies can be translated into legal terms by the Legal Subcommittee.
The presentation "International Regulation of Space Debris: Policy
Considerations" by H.A. Baker approached the space debris problem from
1993
EVENTS OF INTEREST
49
an environmental perspective.
The author offered
recommendations for
consideration when developing space debris policy and for adjusting the
existing legal regime in order to implement these policies. These policy
recommendations are drawn from two areas of law: international space law
and international environmental law. The latter provides eXlstmg
principles relating to environmental protection which should be examined
for their application to the space debris issue. The former provides both
developing and accepted principles of law to be considered when
developing a regulatory regime for the management of space debris.
The major .provisions in International space law for protection of
the outer space and Earth environments are article IX of the Outer Space
Treaty and articles 7 and 15 of the Moon Agreement.
Space debris and its potential effects raise several issues which
cannot be conveniently categorized as belonging to the domains of either
space law or environmental law. Special considerations are needed for such
issues, e.g. use of nuclear power sources, Earth orbits as natural resources
and military or hostile use of space debris.
The main conclusions of the conference may be summed up as
follows:
Ground-based observations with radar and optical facilities reveal
the existence of about 7000 objects (larger than 10 em) in space, which do
not represent an immediate and excessive danger.
However, the risk of
collisions with orbital debris is steadily growing and adequate measures
have to be taken in order to keep the debris hazard for manned and
unmanned missions within safe limits. Of most concern are the long-term
prospects of the debris hazard, particularly in those regions in space
which are most heavily used, e.g. low Earth orbits (900-1500 km) and the
geostationary belt (about 36,000 km altitude).
Significant efforts are in progress to characterize and improve the
knowledge on the mid-size debris population (I-50 em size objects).
Shielding in this category is currently not practical and the knowledge on
the spatial distribution is rather inaccurate.
Clean-up of debris is neither technically practical nor
economically feasible. The thrust of the action must be toward preventing
the creation· of debris.
Several preventive measures have been identified
and implemented in space activities, such as releasing residual propellant
in rocket upper stages to preclude a subsequent explosion generating many
fragments, and the reorbiting at higher altitudes of geostationary satellites
at the end of their mission in order to avoid collision with operational
satellites.
Further possibilities include destructive reentry into the
atmosphere to burn up the spacecraft or selection of orbital parameters to
limit the lifetime.
The space debris problem can only effectively be solved by
international cooperation. Bilateral discussions between space agencies on
the debris issue have taken place since 1987. Furthermore, on the occasion
of the First European Space Debris Conference, the first multilateral
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discussions among representatives of NASA, the Russian Space Agency,
Japan, and ESA took place in Darmstadt (on 2-3 April).
It was agreed to establish a Space Debris Coordination Committee
which would regularly meet (semi-annually) and which would be supported
by four technical working groups. Within the framework of this cooperation
the four parties will exchange relevant· technical information and
experience related to space debris and will prepare common strategies to
counter the space debris problem.
In the absence of internationally agreed regulations and
conventions on space debris mitigation and control, the aforementioned
cooperation can be considered as a significant step toward a common
approach on space debris control among four major space operators.
In view of the high interest this ESA initiative has stimulated, the
holding of a second conference on the debris issue is envisaged in about 23 years from now.
W. Flury
Conference Organizer
Second Pan-American Space Conference, Santiago (Chile), 26-30 April 1993
Santiago, Chile was the venue chosen for the Second Pan-American
Space Conference, which drew together scientists, academicians, educators,
engineers and lawyers involved in space activities in the Americas. Also
present were representatives of industrialized countries, such as the U.S.'s
NASA, ESA, the French CNES, the German and Spanish aerospace agencies,
as well as some from developing countries (Brazil's Instituto de Pesquisas
Esapaciais conference was a follow-up to the First Pan-American Space
Conference held in Costa Rica, March 1990.
The plenary sessions were devoted to presentations by specific
countries, and to those of the space agencies and United Nations'
specialized agencies (WMO, UNEP, the UN's Office for Outer Space Affairs,
and the Committee on the Peaceful Uses of Outer Space (COPUOS). Several
sub-committees were established, charged with evaluating projects
suggested in Costa Rica, and making proposals for additional projects
related to the application of space sciences and technology in the
Americas.
Remote Sensing activities, including monitoring the environment
from outer space, were important themes of the conference, as was
education.
Regarding the latter, the Spanish government made several
presentations regarding its proposal for educational or distance learning
in the Spanish-speaking Americas, using the Spanish HISPASAT satellite.
Several
other countries
discussed their present and
future
telecommunication satellite plans··Indone.sia, Argentina, Mexi~o, among
others.
The Legal Sub-committee was chaired by Dr. Eduardo Gaggero of
Uruguay, assisted by Dr. Aida Armando Cocca of Argentina as Rapporteur.
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EVENTS OF INTEREST
51
Fewer lawyers were present in Santiago than had been in Costa Rica, with
the result that few presentations or project proposals for future action
were made.
Quantity not being a reflection of quality, however, the few papers
that were presented were most informative, for example, the one on
Mexico's space activities and policies, by Dr. Javier Abud Osuna of the
Secretariat of External Relations.
Dr. Alfredo Rey of Colombia, and
currently that country's representative at the UNCOPUOS, provided an
excellent analysis of the evolution of the issues related to the use of the
geostationary orbit, both at the COPUOS and the International
Telecommunication Union (ITU), and the newest proposals of the countries
with "special geographic situations". Issues related to space debris were
the focus of the paper presented by Dr. Marta Gaggero (Uruguay). Sylvia
Ospina presented a paper on the evolution of communication satellites and
their regulation, including future low earth orbit (LEO) systems.
Educational programs, as well as the need for greater cooperation
among countries and agencies were the topics of the sub-committees on
Education and Science and Technology.
The latter sub-committee also
included several presentations on telecommunications satellites, and the
changing role of the ITU, as presented by Dr. Juan Zavattiero of the I.T.U.'s
office in Latin America.
The second Pan-American space conference was perhaps less wellattended than the first one in Costa Rica. One of the goals of the Santiago
conference was to establish the meeting of Pan-American space experts on
a regular basis, and to convene a third conference within the next two to
three years.
This conference, as well as several other space and satellite-related
conferences held in Washington within the last few months (Satellite XII,
the International Small Satellite Organization, as well as the U.S. Global
Change Policy Symposium), highlight the fact that space activities and
small satellites are being recognized as increasingly important.
Most of these conferences have also highlighted the multiple uses
that can be made of future low earth orbit (LEO) systems. They range from
paging and other personal communications, to geographic information
systems and environmental monitoring.
Conspicuously absent from the agendas of most of these
conferences, however, are a number of issues that need to be considered
prior to launching the LEO systems. For one, the small amount of spectrum
(35 MHz) available for mobile services means that not all of the proponents
will succeed in launching their system, let alone make efficient use of the
spectrum.
Many technical coordination questions remain unsolved, while
licensing agreements between private parties and governments have yet to
be obtained.
Secondly, multiple launches of multiple satellites will create if not
contribute to the debris in outer space. (Ironically, many of the LEO's are
launched and used to monitor the earth's environment and ecological
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changes, but no attention is being paid to the changes that these very
launches are causing in and to the outer space environment.)
Another issue that should be studied, regarding the increasing
involvement of private parties in outer space activities, relates to their
potential liability.
While the 1972 Liability Convention, as well as the
1967 Outer Space Treaty talk about liability and responsibility, their
focus is on the States, or governments, not on private, multi·national
corporations. Is the time at hand to reconsider these treaties?
These are just three of the many issues that need to be thoroughly
studied and resolved prior to implementing any LEO satellite system,
whether for earth-monitoring or personal communications.
Due to their complexity, the cooperation of multi-disciplinary
teams will be required to arrive at workable--and livable--solutions. The
"bottom-line" question remains the same: who will be willing to finance
solutions to these issues, to pay for a clean outer space environment and at
what price?
Sylvia Ospina, J.D., LL.M.
International Telecommunications I Space Law Consultant
The Law in Relation to Remote Sensing Satellite Techniques for the Benefit
of the Environment
The Center for Study and Research on Space Law of the Comparative
Law Institute of the University of Paris II, the Environmental Law Center of
the Robert Schuman University of Strasbourg, the Working Group on
Scientific Space Remote Sensing and the University Space Research and
Study Group of the Louis Pasteur University of Strasbourg, organized a
colloquium on "The Law in Relation to Remote Sensing Satellite Techniques
for the Benefit of the Environment," in Strasbourg, on June 2, 3, 4, 1993.
The attention focused on problems of environmental protection has
sharpened, especially since the "Earth Summit" held in Rio de Janeiro in
June 1992, concentrating on the continuing deterioration of the ecosystems
on which people depend for their well-being.
The five sessions of this international colloquium dealt
respectively with:
- an overview of technical and legal aspects of space
remote sensing;
- the main environmental problems;
- the technical and legal framework of collecting and
distributing data systems;
- the access to and protection of data; and
- the issue of a global environmental data system.
The approach followed was interdisciplinary, taking account not
only of the interdependence between scientific knowledge and law, but also
of the economic, social, and political implications of remote sensing
activities.
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53
The scientists detailed the basic principles necessary to direct the
legal reflections on the problems posed by the use of remote sensing for
environmental protection. Accordingly, they discussed recent and
potentially dangerous changes in the earth equilibrium, such as the
greenhouse effect, destruction of the ozone layer, deforestation and
desertification, pollutions, and natural disasters.
These phenomenons may be characterized as "main problems"
because of their potentially catastrophic consequences or their
irreversibility or because they may extend worldwide beyond territorial
in each case, those problems present differing ecological,
boundaries;
economic, or legal consequences.
In this context, remote sensing by satellites has become an
irreplaceable tool for efficient environment monitoring,
including routine
information collection and processing - and for maintenance of an
inventory of the earth resources.
At this level, international lawyers must work with scientific
knowledge in order to formulate rules which will facilitate the struggle
against pollution rather than simply allowing the cataloguing of its effects.
New and various problems confront them in this task.
The implementation of the "Principles Relating to Remote Sensing of
the Earth. from Space," adopted by the United Nations General Assembly on
December 3, 1986, in Resolution 41/65 and governing the activities of
States, was analyzed and much discussed during the colloquium.
Have these fifteen principles unanimously adopted by the General
Assembly become, as a result, tenets of customary international law
binding on all nations? Certainly, it was concluded that these principles
had provided States with a legal framework which allowed them to conduct
freely their remote sensing activities, which otherwise would not have been
possible.
Nevertheless, whether they could be said to be customary law
was still a debate open to question.
In addition, contradictory positions were advanced on the adequacy
of these principles in relation to the actual needs of the international
community, particularly on the question of striving for a proper balance
between the interests of the industrialized countries which possess the
necessary technology and those of the developing countries which wish to
have a share in the results.
A second basic question concerned the supply of remote sensing
information and the appropriate roles of government and the private sector
in this activity. The main operating systems - FRS, Landsat, Radarsat, Spot,
MOS-JERS, and the Russian system - were explained. In the United States,
the new policy of Landsat data distribution, according to the Land Remote
Sensing Policy Act of 1992, has decided, after the experience of quasi-.
commercialization practiced with Eosat, the return of Landsat programme
to the public sector.
After a debate on the concept of commercialization, it has been
agreed that governments have never thought of privatizing completely the
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remote activities; but while assuming the financing of satellites, they tried
to recover parts of the costs by selling collected data to promote the
widespread use of data and the continuity thereof.
Another issue was. in cases where data was commercially provided.
whether a multi-tiered pricing structure was compatible with the
fundamental principle of open and non-discriminatory access and at what
conditions.
A third basic question to be clarified was the legal character of the
data produced by remote sensing satellites and especially the problem of
their protection, necessary for their commercial exploitation.
The impressive results of the study carried out in ten Community
Member States. on this subject. for the Commission of the European
Communities, confirmed that in positive law, remote sensing data were not
protected adequately. An important solution for this situation would be to
bring remote sensing data under the protection offered by "the European
Commission Proposal for a Council Directive on the Legal Protection of Data
bases.1/
Finally. the colloquium concentrated on the central objective of
developing international cooperation in order to institute a global
environmental surveillance system in the service of mankind. and thus.
advancing the expressed goals of space law.
While there was agreement that it would be premature to establish a
permanent international organization for this purpose. there appeared to
be a good example of how such cooperation can work with the "Committee on
Earth Observing Satellites": within this forum. on an informal basis. the
various space agencies were already consulting on and coordinating their
environmental actIvItIes.
The desire of the colloquium expressed in its general conclusions
was that scientists and jurists continue their common. efforts. in the spirit
of Action 21. programme defined by the "United Nations 1992 Conference
on Environment and Development, which made environmental monitoring a
global priority thereafter inseparable from sustainable development.
II
Anne-Marie MalaviaUe'
Internatinal Conference on Air Transport and Space Applications in a New
World -- The Use of Airspace and Outer Space for all Mankind in the 21st
Century
The second International Conference on Air Transport and Space
Applications in a New World was held in Tokyo. June 2-5. 1993. It was
organized by international institutions of air and space law at Soochow
University. Taiwan; Leiden University. The Netherlands; McGill University•
•
Centre National de la Recherche Scientifique. Institut de Droit Compare.
Centre
d'Etudes et de Recherches sur Ie droit de l'espace.
1993
EVENTS OF INTEREST
55
Canada; Komazawa University, Japan and the Society for the Study of Law
and Space Utilization, Japan. More than 150 people from all over the world
attended the conference. About 30 speakers out of 47 were invited from
abroad. There were six sessions, four on air law and two on space law.
The first space law session was dedicated to the issues of legal and
political aspects of commercial space activities in the 21st century. It was
chaired by Dr. J asentuliyana, director of the U.N. Office for Outer Space
Affairs and Dr. Miyazawa, Director of the Tsukuba Space Center, NASDA.
Prof. HE Qizhi's paper on "Legal Aspects of Organizing Space
Cooperation in Asia-Pacific Region was read in his absence by Mr. Lu. The
author stressed the necessity of regional cooperation in space activities,
espeCially in the Asia-Pacific region and advocated the establishment of an
Asia-Pacific Regional Space Organization with a step by step approach and
within the legal framework of a regional intergovernmental agreement
similar to that of ESA. Then Professor Kosuge, University of ElectroCommunications, Tokyo, presented his paper on "Satellite Communications
Systems and Legal Issues in the Asia-Pacific Region." He mentioned the
growing number of satellites for commercial communication services and
especially the legal issues pertaining to trans-border TV broadcasting by
satellite. He analyzed the present legal framework of national and
international regulations and stressed the need for the establishment of
new rules for trans-border TV broadcasting services in the Asia-Pacific
region as soon as possible.
The next speaker, Dr. Bourely, former Legal Adviser of ESA and
President of the French Society of Air and Space Law, spoke on "New
Relationships between Western and Eastern European Countries in the
Field of Space Activities." He underlined the great necessity for a wider
European cooperation in the field of space activities for the further
development of unification and referred to good examples and experiences
of ESA. Ms. Trinder, a partner in the law firm Zucker, Scoutt &
Rasenberger, Washington, D.C., gave her paper on "Legal Aspects of
Commercial Space Activities, US Space Law: Develop!Ilent in Case Law." She
stressed that there has been surprisingly little litigation in the space law
field in the U.S., as compared to the amount of litigation in other areas. She
analyzed several court cases and suggested to learn the lessons taught by
these cases and to incorporate them into our thinking and drafting
agreements. Mr. Yoshida, a senior analyst with CSP, Japan, and Mr Kitano,
Vice President of Dowa Fire & Marine Insurance Co., Tokyo, made comments
on these papers and participated in the ensuing discussions.
The second session on space law, dedicated to the Exploration and
Use of Outer Space, Celestial Bodies and Resources, was chaired by Prof.
Kuribayashi, Keio University, Tokyo and Professor Chiu, President,
Chinese Society of Aeronautics and Astronautics, Taipei. The first speaker,
Dr .Jasentuliyana addressed "The Exploration, Exploitation and Use of
Space Resources, The Benefit of All Maukind" and, referring to UN
discussions, stressed the special considerations to be taken into particular
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JOURNAL OF SPACE LAW
Vol. 21, No.1
account with respect to the needs of developing countries. The next
speaker, Mr. van Fenema, Vice President, KLM Royal Dutch Airlines, The
Netherlands, presented his paper on "Cooperation and Competition in Space
Transportation." He analyzed the increasing competition of launching
transportation systems among countries and future developments of
cooperation. Prof. Gorove, Director of Space Law and Policy Studies,
University of Mississippi, spoke on "Legal Problems of Manned Space
Flights." He reviewed the rules currently governing manned space flights
and the issues which may arise in connection with them, as well as some of
the solutions offered by the Space Station Agreement and the Draft for A
Convention on Manned Space Flight. The next presentation was made by
Prof. Christol, Emeritus Professor, University of Southern California, on
"Protection of the space Environment: Debris and Nuclear Power Sources."
He provided a detailed analysis of debris including nuclear power sources
in outer space and evaluated U.N. efforts and positive steps concerning the
protection of· outer space environment, such as the Principles Relevant to
the Use of Nuclear Power Sources in Outer Space. The last speaker, Dr.
Mendes de Leon, Director of the International Institute of Air and Space
Law, Leiden University, The Netherlands, spoke on the the "Settlement of
Dispute in Air and Space Law." He dealt with dispute settlement in
international treaties and pointed to the lack of efficient procedures for
dispute settlement and suggested provisions or additional protocols to fill
the gap. Ms. Trinder and Mr. Miyazaki, Manager, Tokyo Marine & Fire
Insurance Co., Japan, commented on the presentations.
All in all the conference proved to be an outstanding event and a
great success.
Prof Toshio Kosuge
Univ. of Electro-Communications, Tokyo
Comments
The Development of Satellite Communications Law in the FCC: Highlights of
Ten Leading Decisions and Future Expectations
The Federal Communications Commission, established by the
Communications Act of 1934, has played and is expected to continue to
play a major role in the development of satellite communications law in the
United States.
The purpose of the ensuing brief overview and commentary is to
highlight what this writer regards as the ten most significant FCC
decisions in this field. Pursuant to these decisions, dozens of privately
operated satellites have been authorized over a span of twenty years. The
decisions gave birth to a multi-billion dollar space communications
industry and create a formidable body of space law.
1993
EVENTS OF INTEREST
57
Brief Overview
One of the early decisions, Domestic Communications Satellite
Facilities, 22 FCC 2d 86 (1970), set forth the basic technical, legal, and
financial information required by the FCC to process an application for
authority to construct.
launch, and operate radio communications
facilities onboard a space station, i.e., a communications satellite.
This
decision also established the "open skies" policy of authorizing any
qualified entity to operate a satellite communications system, not simply
telephone companies.
The policy that the FCC is free to assign a satellite to whichever
orbital location it decides is best,
despite the request of a particular
company for a particular orbital location was laid down in Western Union
Telegraph Company, 47 FCC 2d 274 (1974). This decision also clarified the
authority of the FCC to demand that a satelHte licensee be able to move a
satellite to a different orbital location upon the demand of the FCC.
Another decision, Domestic Fixed Satellite Service, 77 FCC 2d 956
(1980),
established the policy of always processing satellite
communications systems in groups, based on providing the public with 60
days notice within which to file applications for satellite systems to be
considered simultaneously with the first application filed by an
organization for a specific frequency band ("cut off" notice). This ruling
applied the U.S. Supreme Court decision Ashliacker v. FCC, 326 U.S. 327
(1945), to satellite communication systems, such decision holding that the
FCC must provide any qualified organization which timely files an
application for a radio frequency with a fair opportunity to be granted a
license to use that frequency.
Orbit Deployment Plan-Domestic Satellite, 84 FCC 2d 584 (1981)
laid down the principle that variation in the characteristics of
geostationary arc are not comparatively significant and therefore the
Ashbacker decision does not apply to specific orbital locations, but only to
specific frequency bands. This decision enabled the FCC to continue its
"open skies" policy of authorizing all qualified satellite applicants,
without the delays of judicial-type hearings to ensure a fair opportunity
for each of the numerous applicants for the same specific orbital locations
to get their preferred orbital location, based on the legal "fiction" that
different orbital locations in the same portion of the geostationary arc were
of commensurate value.
The principle that satellite licensees could sell the transponders or
channels on-board their satellite, and that the purchaser would not be
regulated by the FCC was enunciated in the decision dealing with Domestic
Fixed-Satellite Transponder Sales, 90 FCC 2d 1238 (1982).
This ruling
began the process of deregulating economic review and control by the FCC
of the satellite industry, and contributed significantly, to the
financeability of new satellite systems.
The decision in the Filing of Applications for New Space Stations
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JOURNAL OF SPACE LAW
Vol. 21, No. J
in the Domestic Fixed-Satellite Service, (Appendix B) 93 FCC 2d 1260
(1983) formalized and expanded the
still-current application
requirements for satellite communications systems, including a limitation
on the nUmber of satellites that could be applied for, a demonstration of
technical compatibility with existing U.S. and non-U.S. satellites, and
financial qualification standards for satellite applicants.
This ruling
began the "multiple entryll precedent, an iteration of the earlier "open
skies" policy.
The "multiple entry" policy basically involves
accommodating all qualified applicants by having the FCC either reduce the
orbital spacing among different satellite systems to create more orbital
locations,
or more strictly construe its detailed application requirements
to disqualify particular satellite applicants, as a means of avoiding legal
type comparative hearings before an administrative law judge among
different satellite applicants to select a licensee, when the number of
applicants exceed the number of available orbital locations at a particular
frequency band.
The approval of a satellite service for the purpose of broadcasting
television programming from space directly to people's homes came about
in the ruling pertaining to Direct Broadcast Satellite Service, 90 FCC 2d
676 (1982). This decision established the principle that broadcasting via
satellite was consistent with the U.S. law, codified in the Communication
Act of 1934, requiring that broadcasting frequencies be "equitably
distributed" among local communities.
privately operated international
The important issue of whether
satellite communications systems may be in partial competition with the
global INTELSAT consortium was decided upon in the decision relating to
International Communications, 101 FCC 2d 1046 (1985). This ruling
applied the previously developed legal precedent for domestic satellite
communications systems to those companies which sought approval for
orbital locations from which to connect earth stations in different
countries.
Another important decision, Satellite Communications, 104 FCC 2d
650 (1986), established the Radiodetermination Satellite Service (RDSS) as
the first satellite service to provide satellite communications among mobile
users, and as the first satellite service in which all qualified applicants
would be licensed so long as they were technically compatible, based on the
use
of a mandated modulation technique
(spread
spectrum
communications), with the first group of licensed companies. This ruling
also clarified that strict financial qualification criteria
would not be
required for satellite applicants if there was adequate technical ability to
accommodate all of the satellite applicants.
Another significant decision dealing with Mobile Satellite Services,
2 FCC Rcd 485 (1987) established the Mobile Satellite Service (MSS) as the
first satellite service (0 provide voice communications among mobile users.
This decision also was the first use by the FCC of a mandated consortium
among all qualified applicants for a satellite service, instead of the past
1993
EVENTS OF INTEREST
precedent of separate licenses for each applicanL This was
inability of the FCC to accommodate more than one license in
amount of frequency spectrum available for MSS, and
disinclination to conduct legal-type comparative hearings
applicants to select the most qualified applicant for a license.
59
due to the
the limited
the FCC's
among the
Qoncillsion and Forecast
Since 1987 there have been no FCC decisions which set fundamental
new precedent for satellite communications systems. Instead, the FCC has
issued new licenses to companies consistent with the above-described
decisions, reaffirmed its Mobile Satellite Services decision in the face of
legal challenges to it, and undertaken preliminary legal activity leading to
new legal decisions in the areas of voice and data-only Low Earth Orbit
International Satellite Sound Broadcasting
(LEO) Satellite Services,
Services, and Satellite Digital Audio Radio Services.
During 1993 it can be expected that the FCC will Create a NonVoice Low Earth Orbit Satellite Service and possibly a Non-Geostationary
For the Non-Voice Low Earth Orbit Satellite
Mobile Satellite Service.
Service the FCC has already established a frequency allocation and is in
the process of developing a specific legal regime based on a consensus
(Leosat,
reached by four companies which have applied for licenses
Orbcom, Starsys, and Vita).
For the Non-Geostationary Mobile Satellite
Service the FCC has already accepted applications in accordance with the
1983 Filing of Applications decision described above, and has secured the
consent of the WARC'92 global regulatory treaty to this type of service.
While it is too early to predict the legal foundation of these new satellite
services, they are likely to be consistent with the basic legal framework
established by the FCC in its Domestic Fixed Satellite, International
Communications and Satellite Communications decisions described above.
During 1994 it can be expected that the FCC will create a Satellite
Digital Audio Radio Service and possibly an International Satellite Sound
Broadcasting Service. For the Satellite Digital Audio Radio Service the FCC
in October 19~2 proposed a frequency allocation and provided the public
with 60 days within which to file applications to be considered in
conjunction with that of the initial proponent of the service, Satellite CD
Radio, Inc. For the International Satellite Sound Broadcasting Service, the
to
FCC authorized the pioneer of this service, AfriSpace Corporation,
construct, launch, and operate an initial satellite system on an
experimental basis. The legal foundation for these services will probably
be similar to that established earlier in Direct Broadcast Satellite Systems.
The FCC has shown a remarkable ability to adapt to new satellite
technology with rational legal regimes. In the twenty years since it began
authorizing satellite communications systems,
no company that was ready,
willing, and able to implement a satellite system has failed for want of a
JOURNAL OF SPACE LAW
60
Vol. 21, No.1
license from the FCC. The FCC is likely to continue its multiple entry,
forward-looking policies throughout the 1990's.
M. A. Rothblatt
President, MARCOR, Inc.
Case
Note
AViec Systems, Inc. v. Peiffer·
From 1984 to 1992, Peiffer was a full time employee of Avtec
Systems, a government contractor that markets space related computer
services. During this period, Peiffer developed substantial expertise in
computer simulations of satellite orbits and orbital analysis.
In 1985,
Peiffer first began developing the "Orbit Program," a computer software
program that performs various orbital simulations for satellites. Between
1988 and 1991, several modifications to the orbit program were suggested
by fellow employees and subsequently incorporated into the Orbit
Program.
Peiffer demonstrated the revised Orbit Program to several of
Avtec's clients as a unique Avtec capability. Avtec subsequently labeled
the Orbit Program as an Avtec trade secret in its 1991 client capability
materials. In January 1992, Peiffer demonstrated the Orbit Program to
NASA as part of an Avtec effort. to obtain a contract. However, unknown to
Avtec, Peiffer used an outdated version of the Orbit Program that lacked
recent improvements which Peiffer knew were of importance to NASA.
Avtec was not awarded this NASA contract. Peiffer believes that had he
demonstrated the most recent version of the Orbit Program to NASA, Avtec
would have been awarded this NASA contract.·
In 1988, the Orbit Program was in a format known as the ".309
In early 1989, however, Peiffer began developing the Orbit
version."
Program into something different -- the "2.05 version." This version was
not a program intended for demonstrations and specific problem solving,
but rather a general "stand alone" software package that could be marketed
commercially. Peiffer subsequently met one Kisak and discussed marketing
Peiffer did not
this Orbit Program through Kisak's corporation, KKI.
inform Avtec of this meeting. In March 1989, Peiffer signed an agreement
with KKI giving KKI an exclusive license to market the Orbit Program.
Again, Peiffer failed to inform Avtec of his agreement with KKI. Since its
1989 evolution, sales of the Orbit Program have generated $197,000 in
gross revenues for KKI. Peiffer has received approximately $98,500 of this
amount.
Avtec alleges ownership of the Orbit Program, and seeks damages
for copyright infringement of the Orbit Program, misappropriation of its
trade secret in the Orbit Program, breach of Peiffer's fiduciary duty, and
•
805 F. Supp.
1312 (1992).
1993
EVENTS OF INTEREST
61
imposition of a constructive trust. Specifically, Avtec alleges that Peiffer
developed the Orbit Program in the scope of his employment with Avtec
and, accordingly, Avtec owned the Orbit Program by virtue of the "work for
hire doctrine.
tl
I.
Copyright Infringement
The basis of Avtec's action centers on the ownership of the Orbit
Program. Avtec maintains Peiffer created the Orbit Program in the scope of
his employment with Avtec, thereby making Avtec the program's true
owner. Peiffer disputes this, claiming he created the Orbit Program in his
spare time, as a "hobby," and in no way created the program for Avtec.
The court stated the presumption is that the one who creates the
work is its rightful owner for copyright purposes. This presumption may
be overcome, however, if the work is prepared by an employee within the
As Peiffer was clearly a full-time
scope of his or her employment.
employee of Avtec for the time period in question, the court turned to the
Second Restatement of Agency to determine what constitutes "scope of
employment." The Restatement provides that conduct of a servant is within
the scope of employment only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space
limits;
(c) it is actuated, at least in part, by a purpose to serve the master.
The Court held that Avtec failed to satisfy the three-part
Restatement test.
Although Avtec did present evidence that the .309
version of the Orbit Program performed many of the same functions found
in reports and other computer programs utilized by Peiffer as an employee,
Avtec failed to produce sufficient evidence to satisfy the Court that Peiffer
developed the current 2.05 version of the Orbit Program within Avtec
authorized time and space limits or that Peiffer was motivated by a purpose
to serve Avtec. Peiffer performed the majority of the work during his nonworking hours and in furtherance of his personal hobby, and not to satisfy
specific work obligations for Avtec. Since Avtec failed to overcome the
presumption that Peiffer, as the Orbit Program's creator, is the rightful
owner for copyright purposes, the Court denied Avtec's complaint for
copyright infringement.
II.
Misappropriation of Trade Secrets
The Court found that the use of the .309 version of the Orbit
Program as a demonstration and marketing device qualified as a trade
secret. While Avtec never sold or attempted to sell the Orbit Program as a
"stand alone" product, it did use the Orbit Program to market its services.
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JOURNAL OF SPACE LAW
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The court found it significant that Peiffer performed numerous
demonstrations of the Orbit Program for Avtec's potential clients, and
knew that Avtec held out the Orbit Program as an Avtec capability in
marketing demonstrations. Furthermore, Avtec's 1991 capability materials
explicitly cited the Orbit Program as a trade secret for marketing
purposes. Thus, the Court believed that Peiffer, while not creating the 2.05
version of the Orbit Program as a work for hire,. granted Avtec a license to
use the program as a marketing tool to demonstrate Avtec's capabilities by
his numerous demonstrations at Avtec's request.
With respect to KKI, the Court held that KKI knew or should have
known that it acquired the Orbit Program under circumstances giving rise
to a duty to maintain its secrecy or limit its use. As president of KKI,
Kisak cannot be excused for failing to communicate with Peiffer's
principals at Avtec to inquire of Avtec's proprietary interest, if any, in
the Orbit Program. KKI had an obligation to investigate any ownership
claims by Avtec and it failed to do so. Consequently, the court found KKI
also liable for misappropriation of Avtec's trade secret in the use of the
Orbit Program.
III.
Breach of Fiduciary Duty
Avtec asserted that as its employee, Peiffer owed Avtec the duties
of loyalty, fidelity, non-competition and full disclosure. The court found
it well established that an employee violates his duty of loyalty, fidelity
and responsibility to his employer by using confidential information to the
detriment of his employer and to the advantage of a competitive firm. Since
Peiffer and KKI entered into an agreement granting KKI an exclusive
license to market and distribute the Orbit Program while Peiffer was still a
full-time employee of Avtec and without Avtec's knowledge, Peiffer
essentially began "serving two masters. -- Avtec and KKI."
Furthermore,
Peiffer should have used an updated version of the Orbit Program in the
January 1992 NASA demonstration, which occurred when he was still a full
time paid employee of Avtec. Accordingly, the Court held that Peiffer
breached his fiduciary duty to Avtec.
IV.
Constructive Trust
In light i of Peiffer'S misappropriation of Avtec's trade secret in the
use of the Orl1it Program, and Peiffer's breach of his fiduciary duty to
Avtec, the court felt Peiffer and KKI would be unjustly enriched if
permitted to retain all benefits and revenues generated by the Orbit
Program. Accordingly, the Court granted Avtec's request to impose a
constructive trust upon Peiffer and KKI.
The Court ordered that Peiffer and KKI remit to Avtec fifteen 15%
of the gross revenues realized by KKI from the Orbit Program as well as
15% of any future gross revenues generated by the Orbit Program through
1993
EVENTS OF INTEREST
63
the efforts of KKI. Although the Court found that Peiffer owned the 2.05
version of the Orbit Program for copyright purposes, it ordered that the
use of such program and its enhancements as well as a portion of the
revenues generated therefrom must be shared with Avtec as a portion of the
Court's damage award.
Michael A. Gorove*
Short
Accounts
Nuclear Issues and the Global Environment
"Nuclear Issues and the Global Environment" was the subject of a
panel at the 34th Annual Convention of the International Studies
Association which met in Acapulco, Mexico, 23-27 March, 1993. Professor
Nikita F. GlazovskY, First Deputy-Director of the Institute of Geography in
the Russian Academy of Sciences was the chair.
Two papers were
presented, one by Professor lonathan F. Galloway of the Department of
Politics at Lake Forest College and the other by Professor Ann a
Scherbakova of the Monterey Institute of International Studies. Galloway's
paper was entitled, "The New Regime For Nuclear Power Sources in Outer
Space," and Scherbakova's paper was entitled, "The Past and Future Use of
Peaceful Nuclear Explosions in the Former Soviet Union."
Gal/away examined the 1992 United Nations "PrInciples Relevant to
the Use of Nuclear Power Sources in Outer Space"(U.N. General Assembly
Res. 47/68, December 14, 1992) from an interdisciplinary vantage point
involving perspectives from the natural sciences and technology, law and
policy, economics, history and ethics.
He contrasted different nuclear
power sources ~ nuclear reactors, radioisotope thermoelectric generators
(RTGs) and nuclear rockets - and noted that the UN Principles apply only
to the first two sorts of power sources. There are eleven principles in all,
but Galloway devoted most of his analysis to Principle 3, "Guidelines and
Criteria for Safe Use."
Disagreements over the word "shall" and
quantitative or probabilistic limits on radiation dosages were noted. How
consensus was finally reached after thirteen years of study and
negotiations in the UN was outlined. The author also emphasized that the
matter is still on the agenda of COPUOS. In concluding, Galloway said, "The
work of the Committee on the Peaceful Uses of Outer Space on NPS gives us
reason to be optimistic about the continuing processes of developing
international environmental space law .....
There is not much reason for optimisim when one examines the
history of peaceful nuclear explosions (PNE's) in the former Soviet Union.
Scherbakova outlined ten uses of PNE's - 1) for the removal of rock strata
and ore extraction, 2) for seismic sounding, 3) to eliminate gas flares, 4)
for excavations, 5) to increase oil and gas recovery, 6) for expansion of
•
Boston University School of Law.
64
JOURNAL OF SPACE LAW
Vol. 21, No.1
prospecting and industrial developments of deposits, 7) to create
underground storage cavltJes, 8) for waste burial, 9) to eliminate gas
pockets in coal beds, and 10) for sump holes, She outlined forty-one PNE's
and explained how there was a vested interest in this technology but little
reason to think that entrenched interests may wish to continue dubious
programs without adequate safeguards,
Glazovsky acted not only as chair but as a discussant and he also
presented a new color-coded map of environmental threats in the
territories of the former Soviet Union.
There was a lively discussion
within the panel and from the audience. . Much work remains to be done.
Prof. Jonathan F. Galloway
Lake Forest College, Illinois
Settlement of Space Law Disputes
On April I, 1993, during the Annual Meeting of the American
Society of International Law, the Space Law Interest Group, chaired by Prof.
Stephen Gorove, held a panel discussion on the Settlement of Space Law
Disputes. In his introduction, the chairman noted that the U.N. UnderSecretary-General for Legal Affairs at the recent COPUOS Legal
Subcommittee meeting called on lawyers and policy makers to create a legal
framework for the orderly and dispute free conduct of outer space
activities. This created a real challenge which would be hard to meet.
The main presentation was given by Professor K.-H. B6ckstiegel,
who provided an overview of his paper published in this issue of the
JOURN AL. * In his discussion, he focused on the availability and potential
mechanisms for the settlement of space law disputes. Commenting on the
presehtation,
Professor H. Almond addressed various methods that might
be used for settling disputes.
Among the examples, he mentioned
a
consultation procedure along the lines used by the GATT Contracting
Parties, consultations similar to those used between Argentina and the
United Kingdom on the Falkland Islands question, the approaches taken in
the Alabama Claims case and in the Aramco Arbitration. The other
commentator, Dr. E. Frankie, General Counsel of NASA, also provided a
short presentation, noting that the U.S. goal is not to bind itself to a
compulsory dispute settlement mechanism.
Rather, to the extent that an
agreement contained a provision on dispute settlement, the U.S. would
Furthermore, he noted that the key to any
examine it individually.
analysis or discussion of dispute settlement was to define the types of
disputes that would be covered' by provisions on dispute settlement.
Nevertheless, he stressed that to provide specific provisions for disputes
arising out of space activities would continue to fuel the notion that space
is a specialty area, a notion which results in misunderstandings - for
•
See this issue of the JOURNAL, at 1.
1993
EVENTS OF INTEREST
65
example, large insurance premiums.
The ensuing discussion was quite lively with some advocating
general umbrella provisions for settling disputes arising out of space
activities and others contending that such disputes should either be
settled on an ad hoc basis or within the general framework of international
law and international legal dispute settlement.
Katherine M. Gorove
Visiting Fulbright Lecturer in Law
Eotvlis L6nind University
Budapest, Hungary
Congressional Notes
The scaled-back space station project survived in the House by the
slimmest margin of one vote and awaits Senate action where it may fare
slightly better.
In response to concerns expressed by astronomers and environmentalists that extensive space advertising could interfere with the study
and unfettered vision of celestial objects and add to "space junk," a Space
Advertising Prohibition Act was proposed in the House and Senate (S.
1145). The act would forbid the launching of huge orbital billboards to
display luminous corporate logos. Last April, Space Marketing Inc.
announced plans to launch by 1996 a mile-long advertising billboard
which would be visible from earth.
International Developments
An agreement on cooperation in space was signed by the United
States and the Russian Federation on June 17, 1992. It provides a broad
framework for NASA and the Russian Space Agency for cooperation in
human and robotic space flight projects, ground-based operations and
experiments and other important activities, such as monitoring the global
environme.nt from space, MIR space Station and Space Shuttle missions,
involving the participation of U.S. astronauts and Russian cosmonauts,
safety of space flight activities, and space biology and medicine.
In a resolution passed on Dec. 9, 1992, the U.N. General Assembly
stressed the need for verification measures to prevent an arms race in
outer space and called upon all states, in particular those with "major
space capabilities," to contribute to the peaceful use of outer space. Both
the Russian Federation and the United States were urged to undertake
intensive bilateral negotiations in a constructive spirit to reach an early
agreement on preventing an arms race in outer space (Res. 47/51). The
General Assembly also urged an immediate nuclear arms freeze and
emphasized the need to begin negotiations on an international convention
prohibiting the use or threat of use of nuclear weapons under any
circumstances
(Res. 47/53).
On January 3, 1993, Russia and the United States signed the Treaty
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JOURNAL OF SPACE LAW
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on Further Reduction and Limitation of Strategic Offensive Arms (START
II). It codifies the Joint Understanding signed by President Bush and
President Yeltsin on June 17, 1992. It bans all long-range, land-based
missiles with multiple nuclear warheads. START II will not enter into force
until START I and its additional Protocol signed at Lisbon in May 1992
have been ratified by all parties (Belarus, Kazakhstan, Russia, Ukraine and
the United States).
The new Constitution and the new Convention of ITU were signed on
December 22, 1993 on the last day of the Additional Plenipotentiary
Conference (7-22 December 1992). ITU's new structure is organized into
three sectors: development,
standardization and radiocommunication. The
first Director of the Telecommunications Development Bureau which was
set up by the Nice Plenipotentiary Conference and became operational on
January I, 1990 was also elected.
At the recent meeting of the Committee on Peaceful Uses of Outer
Space, the United States dropped its opposition to having the space. debris
issue placed on the agenda of the Committee's Scientific and Technical
Subcommittee on the condition that the agenda item was appropriately
focused on research being done on the debris environment.
lISL Moot Court Competition
As a follow-up to the very successful moot court competition among
Washington D.C. universities organized in connection with the 1992 World
Space Congress, the IISL decided to hold in 1993 an International Moot
Court Competition in which American and European universities would
participate. The Preliminaries of this event were already held and George
Washington University had won the U.S. Preliminary against three other
U.S. universities. The European Preliminary was won by Leiden University
and the finals between the two universities are expected to be held in Graz
in October 1993. A similar moot court competition is planned for 1994.
Other Events
At the World Telecommunication Standardization Conference
in
Helsinki, on March 1-12, 1993, over 450 standards were approved and an
Advisory Group was established to review priorities and strategies for
activities of the Telecommunication Standardization Sector.
The Ninth National Space Symposium and Commercial Space Expo
USA, held in Colorado Springs, April 13-16, 1993, devoted some of its
sessions to international space cooperation, policy and security issues.
The 10th IAA Man in Space symposium took place in Tokyo, April
19-23, 1933.
The first Development Conference for the Asia-Pacific region under
the auspices of the ITU was convened May 10-15, 1993 in Singapore.
EVENTS OF INTEREST
1993
67
Brief News
A faraway super-bright galaxy, the source of as much energy as a
trillion suns, was observed by scientists through data sent by the
Extreme Ultraviolet Explorer spacecraft.. .. The SR71, a high speed
reconnaissance aircraft, an abandoned remnant of the Cold Wro:, was turned
into a useful science platform, equipped with an ultraviolet camera to
study stars and comets from 85000 feet.
President Clinton replaced the National Space Council with the
Office of Science and Technology Policy .... The space based anti-missile
weapons program, commonly known as "Star Wars" has been shelved by
the Clinton administration .... The FCC on Mro:ch 2, 1993 has conditionally
approved Comsat Mobile Communications to provide a number of mobile
satellite communications products and services.
The Space Shuttle Discovery which was launched on April 8, 1993
carrying the first hispanic woman into space studied the depletion of the
earth's protective but withering ozone layer which is consumed by humanmade pollutants and possibly by volcanic gases. It deployed and retrieved
a small satellite which collected data on the sun's blazing corona.
The DCX, a single stage rocket developed by SDI would put payloads
in orbit cheaper than other currently available rockets .... The best
performing owners, builders, and launchers of satellites can expect to be
awarded premium rates that ro:e two or three percentage points below the
prevailing rates of 15-18 percent ....The $213 million, 4 1/2 ton stranded
satellite, called Eureca (European Retrievable Carrier), was retrieved by
the Space Shuttle Endeavour during its June flight .... The Hubble Space
Telescope repair mission is scheduled for December 1993.
On February 4, 1993 Russia deployed a giant space mirror to
reflect sunlight toward the earth .... The Cosmos 2225 reconnaissance
spacecraft, launched in December 1992, self-destructed in orbit on
February 18, 1993 .... Several companies, including INTELSAT, signed
agreements with Russia's Informkosmos to lease their Express satellite, a
new model derived from a Russian DBS design .... During their recent
meeting in Vancouver, President Clinton and President Yeltsin also
discussed Russian access to the world market of commercial satellite
launches. The US may allow Russia to enter its commercial launch mro:ket
under an agreement similar to a 1987 deal with China which permitted
Chinese launch of a specified number of US-built satellites in exchange for
missile proliferation controls and pricing on a par with those chro:ged by
Western launch companies .... The Russian Ministry of Posts and
Telecommunications and the Russian Space Agency have chosen an
international consortium, as the first private satellite company, to
establish a commercial communications system for Russia .... The United
States and Russia plan an unmanned mission to Mro:s in October 1994.
Arianespace contracted to launch two Intelsat VIn and one GE
Americom satellites in 1996 .... A second ESA agreement on cooperation in
68
JOURNAL OF SPACE LAW
Vol. 21, No.1
the peaceful exploration and use of outer space has been signed recently
with Romania; the first one was signed with Hungary in April 1991.
India tested a secret hypersonic propulsion technology which may
be an important step in the development of a future aerospace plane. ISRO,
the Indian Space Agency, denied that cryogenic engine technology bought
by India from Russia would be used for military purposes ....
With the admission of Georgia, Kazakhstan and Slovakia, ITU's
membership rose to 176.
B.
Forthcoming Events
The 1993
IISL Colloquium on the Law of Outer Space will be
held October 16-22, 1993 during the IAF Congress in Graz, Austria.
Topics to be discussed include: (1) Legal aspects of space activities of
organizations of the U.N. system and other international organizations (e.g.
ICAO, WMO, WHO, FAO, IAEA, ITU, etc.); (2) Adjudication and arbitration
of disputes regarding space activities; (3) Legal aspects of space insurance;
(4) Recent legal developments with special emphasis on nuclear power
sources.
In addition to the foregoing events, the International Academy of
Astronautics will hold a Scientific-Legal Roundtable on space debris
and Symposia, inter alia, on international space plans and policies, space
activities and society, extraterrestrial intelligence, and space safety and
rescue. The finals of the 1993
International
Moot
Court
Competition
between George Washington and Leiden Universities will
also take place in Graz at the same time.
Immediately preceding the Colloquium, the U ,N., the IAF, the
Austrian Space Agency, ESA, and the Commission of the European
Community have agreed to jointly sponsor a Workshop on "Organizing
Space Activities in Developing Countries: Resources and Mechanisms."
The Africa TELECOM 94, a follow-up to Africa TELECOM 86 in
Nairobi, Kenya and Africa TELECOM 90 in Harare, Zimbabwe, will be held
in Cairo, Egypt from April 25-29, 1994 for the purpose of reviewing
policies for both the regional and global telecommunication integration of
Africa and the Middle East.
The 1994 Colloquium on the Law of Outer Space is expected to
take place October 9-14 1994 in Jerusalem, Israel. Topics to be
discussed include:
(I) New Legal Developments in Satellite
Communications, to be chaired by Prof. Ruth Lapidoth (2) Definitional
Issues in Space Law, to be chaired by Prof. S. Gorove (3) Liability in
Commercial Space Activities, to be chaired by Prof. B5ckstiegel; (4) Other
Legal Matters, to be chaired by Prof. Kopal
An organizing committee, consisting of Dr. E. Fasan, Dr. M. Smith,
Ms. V. Kayser and Ms. T. Masson-Zwaan, IISL secretary, is in charge of the
1994 International Moot Court Competition, the finals of which are
expected to be held in Jerusalem during the Colloquium.
BOOK REVIEWS/NOTICES
Reviews
INTERNATIONAL LEGAL PROBLEMS IN THE PEACEFUL
EXPLORATION AND USE OF OUTER SPACE, by Maurice N. Andem (Univ. of
Lapland Publications in Law, Rovaniemi, 1992), pp. 511.
This book enriches the body of literature on space law: Mr. A nde m
not only gives the reader a 'historic' overview of the genesis of a great
number of international law, which is outer space law, but he also provides
an insight into the value for mankind of the technological developments in
this field, provided that they are accompanied by the appropriate legal
rules to ensure their peaceful use in outer space.
He is an idealist when it comes to the difficulty of bridging the
many conflicting interests that play a role in the efforts to shape a globally
acceptable legal regime governing national and international space
activities by States and private entities. In his conclusion, Mr. And e m
states that it is encouraging to observe a spirit of compromise between the
USA and the USSR. This was written before the 'glasnost' and 'perestroika'.
After the demise of the communist system of the USSR and in Eastern
Europe. a new situation and new opportunities present themselves, inviting
Mr. Andem to write a sequel to his book. The book has a foreword, written
by that eminent lawyer and judge Manfred Lachs, who considers the book
"one of the most detailed analysis of progress made in developing rules of
conduct for States and individuals to, in and from outer space." Judge
Lachs points out that Mr. Andem is, and rightly so, preoccupied with the
necessity to 'de-militarize' and 'neutralize' outer space and use the
benefits of space activities in the interest of all countries and peoples of
the world. And of course, the survival of mankind demands this.
Mr. Andem makes a point of the necessity, from the legal point of
view, 'to define and delimit the upper limit of the airspace of
States and the lower limit of outer space': He suggests to take 80 kms as
the upper limit of the airspace and the lower limit of outer space. However,
politically, the acceptance of a definite limit is still unattainable under
the prevailing international circumstances. There may still be claims in
the future to extend national sovereignty into outer space, i.e., beyond the
present 'practical' limit of 85-110 km above sea level?
The book is well documented with an extensive bibliography and a
list of UN documents. The choice of subjects for the seven Annexes to the
book are rather arbitrary though.
Mr. Andem deserves a compliment for bringing outer space closer to
man on the earth's surface and to bring man on earth closer to space
activities.
Prof. Henri A. Wassenbergh
Leiden University, Holland
69
70
Vol. 21, No.1
JOURNAL OF SPACE LAW
SPACE LAW: DEVELOPMENT AND
Jasentuliyana (Praeger, 1992), pp. xxiii, 278.
SCOPE,
edited by N.
This recent book on space law dedicated to Dr. Eilene Gal/away
published under the auspices of the International Institute of Space Law
consists of eighteen chapters written by renowned specialists from all over
the world and has a Foreword by Judge Manfred Lachs, a Dedication to Dr.
Galloway by 1.H. Ph. Diederiks-Verschoor, along with two appendices: one a
list of publications of Dr. Galloway and the other a selected bibliography
on outer space law prepared by Kuo-Lee Li.
One group of chapters focus on current and possible future principles
of space and the process of their creation.
A chapter written by H.
DeSaussure discusses maritime antecedents of the outer space freedo.ms
and chapters written by V. Kopal, N. Jasentuliyana, and S. Gorove give an
overview of space law. A chapter by C. Christol discusses the future of
space law and one by E. Gal/away underscores the process for creating
space law. In addition, K-H. Bockstiegel offers a summary of the case law
on space activities and G. Gdl opines on the study and teaching of space law.
Another group of chapters relate to national and international
regulation of space activities. With respect to national regulation, J.
Galloway deals with space law in the United States, while V. Vereshchetin
discusses trends in the Soviet Union. M. Bourely offers an overview of the
European Space Agency and N. Matte focuses more broadly on institutional
arrangements for international space activities.
F. Lyall's chapter deals with satellite communications, while S.
Doyle's contribution pertains to legal aspects of commercialization. P.
Jankowitsch
focuses on military aCtlVIlIes, HE Qizhi s t res s e s
environmental aspects of outer space activities, L. Perek highlights some
of the crucial scientific aspects which are often overlooked by lawyers and
A.A. Cocca examines mechanisms for the settlement of space disputes.
Some of the chapters in the book provide a summary for those
individuals new to the field of space law. Other chapters pose a number of
interesting questions such as, for instance: Should a single global
communications satellite organization still be sought? Should INTELSAT
and INTERSPUTNIK merge?
How can national interests and international
cooperation be balanced to deal with military activities in space? Should
principles on nuclear power sources be incorporated into a convention?
What legal steps can be taken to begin to protect outer space from
pollution?
Should law follow, precede or develop simultaneously with
scientific and technical developments?
Should there be a push for an
International Convention on the Settlement of Space Disputes? Should the
terms of the 1979 MOM Agreement be reviewed? Should there be a new
organization created to deal with outer space issues or rather can existing
organizations meet the challenges? Should there be a legal regime for space
transportation?
Should outer space be delimited? What forms of space
cooperation should currently be taking place?
1993
BOOK REVIEWS/NOTICES
71
Because of the large number of contributing writers, unfortunately
none could go into great depth on anyone issue. Consequently, the book
could be used best by students of space law and those individuals needing
an introduction to a number of space law topics and a quick but thorough
summary of the remaining challenges and problems.
Katherine M. Gorove
Fulbright Lecturer, Faculty of Law
Eatvas L6rand University, Budapest
THE FUTURE OF INTERNATIONAL TELECOMMUNICATIONS, edited
by Umberto Leanza (4 vols., Univ. Rome II & Oceana, 1993), pp. 2890.
This ambitious project is the result of surveys of a number of areas
pertaining to telecommunications law conducted by a group of nine
Researchers and directed by Professor Umberto Leanza of the Faculty of
Law, University of Rome. The compilation reprints documents or excerpts
of documents which touch upon a wide variety of subjects pertaining to
international telecommunications.
The 4 volumes are broken down into five parts: (1) definition and
delimitation of outer space; (2) peaceful uses of outer space; (3) the legal
regime of the geostationary orbit; (4) the legal regime of telecommnnications by geostationary satellites and (5) the appendix. The first 3 parts are
contained in Volume 1, approximately 1/4 of Volume 1 and all of Volumes 2
and 3 deal with the fourth part, and the appendix is in Volume 4.
Because two and one-fourth volumes are devoted to the part dealing
with the legal regime of telecommunications by geostationary-orbit
satellites, the editors were able to include documentation on a number of
related topics.
Subjects include: property and registration; satellite
launching and tracking; removal; responsibility; liability and damages;
telecommunications; freedom of information; copyright and "neighboring
rights"; radiotelevision; remote sensing; navigation; meteorology; and
intergovernmental juridical cooperation. For all of these topics within this
part, as well as for the four other parts, documents that relate to any of the
following six subjects are grouped accordingly and reproduced: (1)
international agreements; (2) international organizations, which includes
the treaties establishing the particular organization and acts of such
organizations; (3) non-governmental organizations, which includes statutes
and acts of those organizations; (4) national practice, which includes
domestic legislation. the domestic approach. and statements of countries in
international bodies; (5) acts of international conferences; and (6)
settlement of international disputes. Some parts obviously would have no
For
relevant documents to be included under one of these subjects.
example, no documents exist relating to international dispute settlement in
the context of the definition and delimitation of outer space, while a
number of documents exist on that subject as it relates to GSO satellites.
An enormous amonnt of useful research material is included in this
72
JOURNAL OF SPACE LAW
Vol. 21, No.1
set. Excerpts from most Background papers prepared by COPUOS, excerpts
from letters from intergovernmental organizations, excerpt from Reports of
UNCOPUOS or from Reports of the Legal Sub-Committee to UNCOPUOS,
relevant national legislation, statements as far back as the early 1960-s
from nations as to their position on the relevant subject taken from the
Summary Record of the Legal Subcommittee or taken from the WARC
negotiations, and resolutions, recommendations, as well as other documents
from regional organizations. Therefore, if one were to research the question
of delimitation, one could find the relevant Background Reports, countries'
practice and statements, working papers and other proposals, etc.
This four volume set provides a valuable asset to any serious
scholar of space law, particularly the more junior scholars, who are not
familiar with the history of many of the laws that exist today. It also is an
enormous time saver for the more senior scholar who knows that a
particular point of view has been expressed by a certain group of
countries, but cannot quite remember which ones or at which point in time
during the last twenty-five years. All relevant material appears to be
included in this set.
The last volume contains an excellent bibliography
and a superb index, allowing one to find materials quickly.
The only
complaint is that the volumes are individually bound and do not lend
themselves to being updated, which means that documents after 1990 are
probably not included.
Katherine M. Gorove
Fulbright Lecturer, Faculty of Law
E5tv5s L6rand University, Budapest
CENTRE D'ETUDES ET DE RECHERCHES SUR LE DROIT DE L'ESPACE,
FAUT-IL CREER UNE ORGANISATION MONDIALE DE L'ESPACE? (Paris,
1992), pp. 167.
This report on whether a world space organizations is necessary
comes at a time when countries are looking for new forms of cooperation
after the Cold War. It is particularly welcome in light of the dearth of
literature on this subject. The report was drawn up by a working group
composed of M. Boure/y, S. Courteix, Ph. Cristelli, G. Lafferranderie, Y.
Rebillard, D. Ruzie, and O. de Saint-Lager under the auspices of the Centre
national de la recherche scientifique (CNRS) by its Center for research and
studies in space law. The current report is in French with a 12 page
summary report, one in English and one in French, and contains the
Working Group's recommendations and conclusions. An English version of
the Report is expected to appear later this year.
The Report outlines the pros and cons of a World Space
Organization. It notes that international cooperation occurs with respect to
drawing up rules governing (1) space actIvItIes, (2) research and
development, and (3) the commercial exploitation of space applications.
Nonetheless, such cooperation differs as to the nature of the parties
1993
BOOK REVIEWS/NOTICES
73
involved, its objectives, its form, and its formal framework.
Because the
international scene has changed dramatically with the end of the Cold War,
many new requirements have developed which call for international
cooperation.
For example, the growing number of spacecraft requiring
coordination for launches, orbit, and reentry, the development of programs
for planetary exploration pursued by the developed countries, the pursuit
of operational activities such as the remote sensing of natural resources,
weather forecasting. environmental monitoring and launch, services, as well
as other areas.
The Report discusses some of the problems inherent in setting up a
world space organization:
some relate to the nature of space activities,
such as the costs, national security requirements and competition; others
concern political aspects, particularly the different views of developing
and developed nations; and yet others involve economic considerations,
which lead many developed countries to be suspect of new international
organizations. The Report argues that although there is no prospect of
setting up a world space organization with broad powers, there are grounds
for setting up a limited world space organization which would not be
operational and which would not be used for commercial ends. It suggests
that the tasks of such an organization should be confined to tasks that
cannot be undertaken through other forms of international cooperation, for
example, drawing up international rules and monitoring compliance with
them, as well as gathering technical information on space activities, and
circulating data gathered in the course of such activities, for example, data
relating to environmental monitoring. The Working Group suggests that to
accomplish these tasks a United Nations Centre for Space, which was
planned as part of UNISPACE-82, could be revived. This would mean that
the organization would be attached to the United Nations, would be
streamlined and flexible, and for some tasks, would incorporate the
existing structures of the UN Office for Outer Space Affairs, the
UNCOPUOS and its Sub-Committees.
The Report also discusses the issues pertammg to a military
mission for such an organization, although agreement was not reached
within the Working Group on some of those issues.
The Report is extremely well organized and appears to be thorough.
It should definitely be read by all interested in the development of space
law.
Katherine M. Gorove
Fulbright Lecturer, Faculty of Law
EOtvOs Lonlnd University, Budapest
THE HIGHWAYS OF AIR AND OUTER SPACE OVER ASIA, edited by
Chia-Jui Cheng and Pablo Mendes De Leon (Nijhoff, 1992), pp. 364.
This treatise contains the proceedings of the Conference on the Law,
POlicy, and Commerce of International Air Transport and Space Activities
which was held in May 1991 in Taiwan and organized by the International
74
JOURNAL OF SPACE LAW
Vol. 21, No.1
Institute of Air and Space Law at Leiden University and the Tamkang
University Graduate School of European Studies.
As intimated in its title, the book deals with two major areas:
aviation and outer space.
It singles out the legal aspects and regulatory
aspects of these two domains.
Within this broad framework, the aviation
aspects are discussed with a focus on issues of regulating reform, safety
and security, liability, and the future of aviation seen in Euro-Asian
relationships. As to the space area, the legal aspects of commercial space
activity and the future of these space activities in the context of EuroAsian relationships are discussed.
Of special interest to space lawyers
and policy makers are the discussions of the legal and commercial aspects
of data gathering by remote sensing (Bin Cheng), the legal' aspects of
aerospace planes (Carl Q. Christo/), the legal problems of direct
broadcasting by satellite, with special attention on program, advertising,
and copyright issues (Toshio Kosuge) , international telecommunication and
ITU developments (Tanja L. Masson-Zwaan), and the international space
station (Frans G. von der Dunk). The future of space activities is espoused
by Michel Bourely. Also covered are the benefits of space activities for
Asian countries (Sompong Sucharitkul) and cooperation and competition in
space transportation (H. Peter van Fenema).
The materials presented in
this treatise should be of great interest both to the specialist and the
general reader as well.
They contain substantial and valuable information
presented by many internationally known scholars. For the organization of
the conference and the publication of a large number of solid presentations
special credit should be given to the inviting institutions, their leaders
and associates.
PROCEEDINGS OF THE SEVENTH ANNUAL INTERNATIONAL SPACE
DEVELOPMENT CONFERENCE - SPACE: THE NEXT RENAISSANCE, edited by
Jill Steele Mayer (Univelt, 1991). pp. 501.
PROCEEDINGS OF THE TENTH ANNUAL INTERNATIONAL SPACE
DEVELOPMENT CONFERENCE - SPACE: A CALL FOR ACTION, edited by
Robert C. Blackledge, Carol Luckhardt Redfield, and Steven B. Seida
(Univelt, 1991), pp. 385.
These two paperbacks are devoted to the 1988 and 1991
International Space Development Conferences and have been published in
1991. Both of them deal with space development in a broad perspective.
The first one, in addition to the fields of science and engineering extends
to areas related to economics. politics, grassroots initiative, business.
education, social sciences, medicine, architecture, arts, and international
activities.
The second volume is directed toward the vision of space
development for humanity.
The great expectations frequently attached to
the exploration and use of outer space are well reflected in the
introductory summation that "space is another place to look from and to in
1993
BOOK REVIEWS/NOTICES
75
order to find solutions to our current problems." (P.v.). In that context, the
book addresses international and global issues with specific attention to
aspects of technology, space stations, space manufacturing, planetary
communities, off·planetary colonies and future technologies.
In addition,
sessions have been devoted to medical, economic and business aspects.
While there are many topics which have interest to lawyers, e.g.,the
discussion on The Future of Space Commercialization and Space Debris by
Edward R. Finch. Jr., it is regrettable that only brief abstracts of the
various presentations are included. Fortunately, the first paperback has a
bit more information on the presented topics than a mere collection of brief
abstracts.
REMOTE SENSING UNDER CHANGING CONDITIONS. edited by Hans·
Joachim Heintze (Bochum, Universitatsverlag Brockmeyer, 1992), pp. 222.
This paperback contains the proceedings of the Immenstaad
Workshop 1992 which was an internationally presented follow·up to a
1988 meeting by researchers to investigate remote sensing possibilities for
securing peace in Europe.
The subjects touched upon in the workshop
include remote sensing in European security, the potential application of
ESA's remote sensing systems for disarmament verification, the role of
verification satellites in European arms control, including verification of a
chemical weapons convention, the various organizational options for
verification, the German position on verification, and the U.N. and NATO
positions on verification.
Additional chapters deal with experiences gained from on·sight
mock inspections, the harmonization of civil and military satellite· borne
remote sensing activities, the lessons from Desert Storm, computer·aided
interpretation of remote sensing data, and a future of verification.
All in all, the book which was published by the Institut flir
Friedenssicherungsrecht and Humanitares Volkerrecht of the Ruhr·
Universitiit Bochum addresses a number of important issues concerning the
use of remote sensing satellites for verification of arms control agreement.
While the Workshop aims to take account of the new political and security
conditions in the wake of the demise of the cold war, it is unfortunate that
it has no input reflecting the positions and practices of the two major
military powers, the United States and the former Soviet Union.
Book
Notices
THE UNITED NATIONS SPACE TREATIES ANALYSED, by Bess C. M.
Reijnen (Editions Frontieres, 1992), pp. 330.
This treatise contains commentaries on the Nuclear Test Ban Treaty
of 1963 and the five major U.N.·drafted space treaties, including the Outer
Space Treaty, the Rescue Agreement, the Liability Convention, the
Registration Convention, and the Moon Agreement. The procedure followed
76
JOURNAL OF SPACE LAW
Vol. 21, No.1
by the author is to reproduce the text of selected articles of these
conventions and follow them up with brief commentaries. Before embarking
on her analytical commentaries, the author briefly refers to some basic
issues on the background and history of the United Nations space treaties,
including the "common heritage of mankind" concept and the principles of
equity and equality. While the placing of her comments immediately after
each treaty provision in a sequential order is helpful for the reader, it
detracts from the value of the book that the very substantial scholarly
literature on the topics is only commented upon very briefly and without
direct reference to supporting annotations.
LIVING AND WORKING IN SPACE HUMAN BEHAVIOR, CULTURE
AND ORGANIZATION, by Philip R. Harris (Ellis Horwood, 1992), pp. 339.
This hard cover book addresses some of the human opportunities
arIsmg from space exploration and habitation.
One of the intimated
purposes of the book is to enlighten people in various fields of science,
education, business, engineering, and politics on why we are going into
space. Out of the eight chapters, some of which address human behavioral
and cultural implications, personnel deployment and macromanagement of
space enterprises, only the last one, dealing with challenges in space
industrialization and settlement, touches specifically on commercial, legal,
and political issues.
Of specific interest is the text of the "Description of First
Principles for the Governance of Outer Space Societies" which was drafted
by scholars assembled for two conferences at the National Air and Space
Museum, Washington, D.C., in December 1986 and November 1987, and is
included in Appendix A.
LES TEXTS DU DROIT DE L'ESPACE,
by Pierre-Marie Martin
(Presses Universitaires de France, 1992), pp. 127.
This is a handy booklet in the Collection EncyclopMique's "Que
series inasmuch as it contains the French texts of the U.N.M
drafted and other space treaties relating to arms control agreements,
international organizations and the U.S./International Space Station.
sais~je?"
SPACE LAW TEACHING IN EUROPE, by the European Centre for
Space Law (2d ed., Martinus Nijhoff, 1993), pp. 127.
This useful paperback provides in its second edition an expanded
alphabetical list, according to countries, of European Universities and
Institutes engaged in some form of space law leaching. The names of the
respective professors. their courses and lists of theses and publications
are also included together with the outline of the First European Summer
Course on Space Law and Policy held in Messina, Sept. 7-16, 1992. It is
1993
BOOK REVIEWS/NOTICES
77
hoped that future editions will include such omitted countries, like
Hungary and the former Soviet Union, where space law has been taught by
eminent specialists (e.g. Professors Gal, Vereshchetin and Zhukov),
probably for a longer time than in most of the other countries.
RECENT PUBLICATIONS'
A.
Books
BLACKLEDGE, ROBERT C., REDFIELD, CAROL LUCKHARDT, AND SElDA, STEVEN B. (EDS.),
PROCEEDINGS OF TIlE TENTH ANNUAL INTERNATIONAL SPACE DEVELOPMENT
CONFERENCE - SPACE: A CALL FOR ACTION (Univelt, 1991).(Univelt, 1991).
CENTRE D'EI1lDES ET DE RECHERCHES SUR LE DROIT DE L'ESPACE, FAUT-IL CREER UNE
ORGANIZATION MONDIALE DE L'EsPACE? (paris, 1992).
CHENG, CHIA-Jm, AND MENDES DELEON, PABLO (EDS.), THE HIGHWAYS OF AIR AND OUTER
SPACE OVER ASIA (Nijhoff, 1992).
GLASER, P.E./DAVIDSON, F.P./CSIGI, K.I. (EDS.), SOLAR POWER SATELLITES: THE
EMERGING ENERGY OPTION (Ellis Horwood, 1993).
HARRIS, PHILLIP R. ,LIVING AND WORKING IN SPACE, HUMAN BEHAVIOR, CuLTURE AND
ORGANIZATION (Ellis Horwood, 1992).
HEINTZE, HANS-JOACHIM, REMOTE SENSING UNDER CHANGING CONDITIONS
(Universitatsverlag Brockmeyer, 1992).
HOBE, STEPHAN, DIERECHIUCHEN RAIlMENBEDINGUNGEN DER WIRTSCHAFILICHEN NUIZUNG DES
WELTRAUMS (Duncker & Humblot, 1992).
INSTITUT DE DROIT COMPARE DE L'UNIVERSITE PANTHEON-AsSAS (PARIS II), CENTRE
D'EI1lDES ET DE RECHERCHES SUR LE DROIT DEL'ESPACE: CHRONIQUE DES ACTIVITES
SPATIALES, JANUARY 1991 - MAy 1992 (1992).
JANE'S INFORMATION GROUP, JANE'S SPACE DIRECTORY (Jane's Info. Group, 1993).
LEANZA, UMBERTO (ED.), THEFUruREOFINTERNATIONAL TELEcODMMUNICATIONS (U. Rome
II and Oceana Publications, Inc. 1992).
MASSON-ZWAAN, TANJA L, AND MENDES DE LEON, PABLO MJ. (EDS.), AIR AND SPACE
LAW: DE LEGE FERENDA: ESSAYS IN HONOR OF HENRI A. W ASSENBERGH (Nijhoff,
1992).
MAYER, JILL STEELE (ED.), PROCEEDINGS OF TIlE SEVENTH ANNUAL INTERNATIONAL SPACE
DEVELOPMENT CONFERENCE, SPACE: THENEXTRENAlSSANCE (Univelt, 1991).
REIJNEN, B.C.M. THE UNITED NATIONS SPACE TREATIES ANALYSED (Editions Frontieres,
1992).
SMITS, JAN M., LEGAL AsPECTS OF IMPLEMENTING INTERNATIONAL TELECOMMUl\~CATION LINKS
(Dordrecht, 1991).
TATSUZAWA, K. (ED.), LEGAL ASPECTS OF SPACE COMMERCIALIZATION (Tokyo, 1992).
B.
Contributions to Books
Boun,ly, Michel, The Experience of Regional Cooperation:
The example of
ESA, in: CHENG, CHIA-Jm/MENDES DELEON, PABLO (EDS.), THE HIGHWAYS OF
AIR AND OUTER SPACE OVER ASIA (Nijhoff, 1992).
Cheng, Bin, Legal and Commercial Aspects of Data Gathering by Remote
Sensing. [d. at 49 (1992).
*
Compiled and edited by Michael A. Gorove. Boston University School of Law.
78
RECENT PUBliCATIONS
1993
79
Christal, Carl Q., Legal Aspects of Aerospace Planes. Id. at 77 (1992).
Dunk von der, Frans G., Legal Aspects of the International Space Station.
What is the
General Partnership or No Genuine Partnership:
Question? Id. at 109 (1992).
Fenema van, H. Peter, Cooperation and Competition in Space Transportation.
Id. at 283 (1992).
Kosuge, Toshio, Legal Problems of Direct Broadcasting by Satellite-Programme, Advertising and Copyright Issues. Id. at 91 (1992).
Masson-Zwaan, Tanja L., International Telecommunications and ITU
Developments. Id. at 99 (1992).
Sucharitkul, Sompong, The Benefits of Space Activities for Asian Countries.
Id. at 259 (1992).
Drewniok, C., Computer-Aided Interpretation of Remote Sensing Data, in:
HEINTZE, HANS-JOACHIM, REMOTE SENSING UNDER CHANGING CONDITIONS:
PROCEEDINGS OF THE IMMENSTAAD WORKSHOP 1992, at 187 (1992).
Fischer, H., From Early-Warning to Civilian Remote Sensing for Security
Purposes - New Perspectives. Id. at 15 (1992).
Goldsmith, P., ESA's Space Systems and Their Potential Application in
Space Remote Sensing for Disarmament Verification, Id. at 23
(1992).
Graaf, van der, H.J., Organizational Options for
Verification. Id. at 91
(1992).
Jaeschke, R., Harmonization of Civil and Military Satellite·Borne Remote
Sensing Activities. Id. at 163 (1992).
Jasani, B., European Arms Control and Verification Satellites. Id. at 37
(1992).
Lewis, P., The Future of Verification, Id. at lSI (1992).
Niebecker, J., Experiences From On-Site Mock Inspections.
Id. at 145
(1992).
Oudraat, Ch. de Jonge, The United Nations and the Verification Issue. Id. at
119
(1992).
Pike, J./Stambler, E., Military Space Systems - Lessons from Desert Storm.
Id. at 175 (1992).
Rohr, W., The German Position on Verification. Id. at 109 (1992).
SchlUter, J.H., NATO and the Verification Issue. Id. at 137 (1992).
Stock, T., Verification and the Future Chemical Weapons Convention:
Possible Use of Remote Sensing Techniques. Id. at 67 (1992).
Wallner, J./Heintze, H.-J./Hounam, D./Nowak, M., Remote Sensing and
European Security. Id. at 1 (1992).
Barre, Martine, Les Systemes de transmission de donnees par satellites, in:
EXPLOITATION COMMERCIALE DE L'ESPACE - DROITPOSITIF, DROIT PROSPECTIF 313
(Universite de Bourgogne - CNRS, Travaux du Centre de Recherche
sur Ie Droit des Marches et des Investissements Intemationaux, vol.
15, Dijon, 1992).
Benzoni, Laurent, Club, monopole, marcM:
enjeux de /'organisation
economique de /'espace. Id. at 19.
Daouphars, Philippe, L'assurance des risques spatiaux. Id. at 253 (1992).
JOURNAL OF SPACE LAW
80
VOL.21, NO.1
Edelman, Bernard, La relt!diffusion par satellites des oeuvres de ['esprit.
ld. at 375 (1992).
Hermitte, Marie-Angele, Decouvertes et inventions en microgravite. ld. at
333 (1992).
Kahn, Philippe, Situations d'un droit commercial spatial. ld. at 91 (1992).
Martin, Annie, L'imagerie spatiale: quelle propriete? ld. at 437 (1992).
Martin, Francois, Le financement des projets de telt!communications
spatiales. ld. at 245 (1992).
Murphy, Marie-France, Activites industriel/es menees en microgravite
propriete industrielle. ld. at 423 (1992).
Oppetit, Bruno, La propriet' des engins. ld. at 301 (1992).
Porquet, Daniel, Les activit's de Locstar. ld. at 221 (1992).
Silane, Frank A., Civil Liability in Commercial Space Ventures under
United States Law. ld. at 233 (1992).
Villain, Rachel, Perspectives des applications spatiales Il l'horizon de dix
ans. ld. at 61 (1992).
Cheng, Bin, Nationality for Spacecraft?, in: MASSON-ZWAAN, TANJA L./MENDES
DE LEON, PABLO M.J. (EDS.), AIR AND SPACE LAW: DE LEGE FERENDA 203
(Nijhoff 1992).
Dunk, von der, Frans G., Jus Cogens Sive Lex Ferenda: Jus Cogendum? ld. at
219 (1992).
Lachs, Manfred, Freedoms of the Air - The Way to Outer Space. ld. at 241
(1992).
Masson-Zwaan, Tanja L., The Aerospace Plane: An Object at the CrossRoads between Air and Space Law. ld. at 247 (1992).
Matte, Nicolas Mateesco, The Role of Communications Satellites in
Preserving Peace. ld. at 263 (1992).
Trinder, Rachel B., Dispute Resolution:
A Proposal for Avoidance of
Litigation in the Space Law Arena. ld. at 273 (1992).
Vereshchetin, Vladlen S., "Open Skies": The Metamorphosis of a Concept.
ld. at 283 (1992).
Galloway, Eilene, The Legal and Regulatory Framework for Solar Power
Satellites, in: GLASER, P.E,jDA VlDSON, F.P,/CSIGI, K.I. (EDS .), SOLAR
POWER SA1ELLITES: TIlE EMERGING ENERGY OPTION (Ellis Horwood, 1993).
C.
Articles
Benko, Marietta/Gruber, Gerhard/Schrogl, Kai Uwe, The UN Committee on
the Peaceful Uses of Outer Space: Adoption of Principles Relevant
to the Use of Nuclear Power Sources in Outer Space and Other
Recent Developments, 42 ZEITSCHRIFT FOR LUFT- UND WELTRAUMRHCHT
(ZLW) 35 (1993).
Bunker, Donald H. Law of the Space Station, 14 REVISTA DEL CIDA-E 9 (19891990).
Farand, Andre, The Legal Regime Applicable to the Space Station
Cooperation: A Canadian Perspective, 17-1 ANN. AIR & SPACE L. 293
(1992).
1993
RECENT PUBLICATIONS
81
Gorbiel, A., Legal
Essentials of the International Maritime Satellite
Organization, 66 ZEsZYTY NAUKOWE UNIVERSYTEfU SZCZECINSKlEGO, ROCZNIKI
PRAWNlCZE (JURIDICAL ANNALS) 23 (No.3, 1991).
He, Qizhi, Legal aspects of Monitoring and Protecting Earth Environment by
Space Technology, 20 J. SPACE L. 111 (1992).
Hobe, Stephan, The Legal Framework of the Decisions made at the
Ministerial Level ESA Conference in Munich, 17-2 ANN. AIR & SPACE
L. 237 (1992).
Hobe, Stephan, The New German Space Agency (DARA), 17-1 ANN. AIR &
SPACE L. 303 (1992).
Jakhu, Ram S., Space Debris in the Geostationary Orbit: A Major Challenge
for Space Law, 17-1 ANN. AIR & SPACE L. 313 (1992).
Jasentuliyana, Nandasiri, Space law and the United Nations, 17-1 ANN. AIR
& SPACE L. 137 (1992).
Kayser, Valerie, Commercial Exploitation of Space: Developing Domestic
Regulation, 17-1 ANN.AIR & SPACE L. 187 (1992).
Kayser, Valerie, Air and Space Law Bibliography, 17-2 ANN. AIR & SPACE L.
597 (1992).
Levine, A.L., Shafritz, J.M., McCurdy, H.E., Lambright, W.H. & Logsdon,
J.M., The Future of the U.S. Space Program: A Public Administration
Critique, 52 PUB. ADMIN. REv. 183 (1992).
Madders, K.J. & Thiebaut, W.M., Two Europes in One Space: The Evolution of
Relations Between the European Space Agency and the European
Community in Space Affairs, 20 J. SPACE L. 117 (1992).
Matte, Nicolas M., L'accord sur la lune: quel avenir?, 17-2 ANN. AIR & SPACE
L. 283 (1992).
Nesgos, Peter D., The Practice of Commercial Space Law, 17-1 ANN. AIR &
SPACE L. 177 (1992).
Ospina, Sylvia Acuerdos Regionales, Convenios Internacionales y las
Telecommunications Por Satelite en America Latina: EI Proyecto
Condor del Pacto Anding, 14 REVISTA DEL CIDA-E 27 (1989-1990).
Robinson, George S., Exobiological Contamination: the Evolving Law, 17-1
ANN. AIR & SPACE L. 325 (1992).
Schwetje, F. Kel1neth, They Shall Beat Their Swords into Plowshares (In
Accordance with all Relevant Arms Control Agreements), 17-1 ANN.
AIR & SPACE L. 383 (1992).
Smith, Milton L., The Role of the ITU in the Development of Space Law, 17-1
ANN. AIR & SPACE L. 157 (1992).
Spring, B., Space Weapons Systems:
A Looming Proliferation Threat, 4 J.
PRACTICAL ApPLIC. IN SPACE 81 (1992).
Stockfish, Bruce, Space Transportation and the Need for a New International
Legal and Institutional Regime, 17-2 ANN. AIR & SPACE L. 323 (1992).
Reports
Alwes,
Detlef and Schrogl, Kai-Uwe, Deutsche
Agentur fiir
Raumfahrtangelegenheiten (DARA) GmbH, Tagung: Stand der Space
82
JOURNAL OF SPACE LAW
VOL.21, NO.1
Debris-Forschung
in
Deutschland
und
internationale
Regulierungsfragen, Bonn, 9 December, 1992, 42 ZLW 83 (1993).
B5ckstiegel, Karl-Heinz, & Focke, Knut, Manned Space Flight:
Legal
Aspects in the Light of Scientific and Technical Development, 20 r.
SPACE L. 168 (1992).
Bogomolov, Vladimir, Prevention of An Arms Race in Outer Space:
Developments in the Conference on Disarmament in 1992, 20 r.
SPACE L. 137 (1992).
Chipman, Ralph, United Nations Committee on the Peaceful Uses of Outer
Space Holds Annual Meeting in New York, 20 r. SPACE L. 133 (1992).
Focke, Knut, European Center for Space Law (ECSL), First ECSL
Practitioner's Forum. Paris. November 18. 1992. 42 ZLW 79 (1993).
Gorove, Katherine, M., First European Practitioner's Forum. Paris,
November 18. 1992, 20 r. SPACE L. 175 (1992).
Hobe, Stephan, International Institute of Space Law. 35th Colloquium on the
Law of Outer Space. Washington, 1-4, September 1992. 42 ZLW 81
(1993).
Malanczuk, Peter, International Law Association (ILA) Continues Work on
Draft Instrument to Protect Environment from Damage Caused by
Space Activities, 20 r. SPACE L. 164 (1992).
Masson-Zwaan, Tanja L., The 35th Colloquium on the Law of Outer Space,
Washington. D.C .• 28 August - 5 September 1992, 20 r. SPACE L. 141
(1992).
Ospina, Sylvia, Space Technology in Developing Countries, 20 J. SPACE L.
160 (1992).
Rothblatt, Martin A., Third Satel Conseil Symposium, Paris - September 2830. 1992. 20 r. SPACE L. 172 (1992).
Tuinder, P.H. Europe's First Space Law and Policy Summer Course, ESA BULL
77 (Feb. 1993).
Comments
Butler,
C.E., The Antitrust Liability of COMSAT in its Role as
Representative to INTELSAT, 17 N.C. r. INT'L L. & COM. REG. 547
(1992).
Dunk, von der, Frans G., The Minsk Space Agreement: A 'Commonwealth in
Space'?, 20 r. SPACE L. 179 (1992).
Lafferranderie, Gabriel, ESA, 17-2 ANN. AIR & SPACE L. 510 (1992).
Sagar, David, INMARSAT, 17-2 ANN. AIR & SPACE L. 500 (1992).
Case Law
Martin Marietta Corporation v. International Telecommunication Satellite
Organization, 20 r. SPACE L. 189 (1992).
1993
RECEN[ PUBLJCATIONS
83
Short Accounts
Gorove, Margaret J., international Academy of Astronautics Academy Day,
20 J. SPACE L. 193 (1992).
Larsen, Paul B., "Law and Outer Space", Fourth Annual Symposium, 20 J.
SPACE L. 194 (1992).
Schwetje, F. Kenneth, Moot Court Competition Highlights World Space
Congress Special Activities Day, 20 J. SPACE L. 194 (1992).
Book Reviews/Notices
BAINUM, PETER M. AND OTI!ERS (EDS.), INTERNATIONAL SPACE YEAR IN THE PACIFIC BASIN,
Univelt, 1992 (S. Gorove), 20 J. SPACE L. 199 (1992).
BOCKSTIEGEL, K.-H.(ED.), HANDBUCH DES WELTRAUMRECHTS, 17-2 ANN. AIR & SPACE
L. 543 (1992).
CODDING, GEORGE A., THEFUTIJRE OF SATEILITE COMMUNICATIONS, Westview, 1990, 20
J. SPACE L. 201 (1992).
DICTIONNAIRE DE SPATIOLOGIE, TOME 1: TERMEs ET DEFINITIONS. TROISIEME EDITION,
CONSEIL NATIONAL DE LA LANGUE FRAN<;AISE, 17-2 ANN. AIR & SPACE L. 545
(1992).
EUROPEAN SPACE DIRECTORY 1992. SEVENTH EDITION, Sevig, Paris, 1992, 20 J. SPACE
L. 202 (1992).
GOLDMAN, NATHAN C., SPACE POLICY: AN INTRODUCTION, Iowa U./AMES 1992,20 J.
SPACE L. 200 (1992).
GOROVE, STEPHEN, DEVELOPMENTS IN SPACE LAW: ISSUES AND POLICIES, 17-2 ANN. AIR
& SPACE L. 567 (1992).
HEATH, GLORIA W. (ED.), SPACE SAFETY AND RESCUE, Univelt, San Diego, 1991 (S.
Gorave), 20 J. SPACE L. 199 (1992).
HEINTZE, HANs-JOACHIM (ED.), REMOTE SENSING UNDER CHANGING .CONDITIONS,
PROCEEDINGS OF THE lMMENSTAAD WORKSHOP 1992, Bochum, 1992 (Benko),
42 ZLW 103 (1993).
JASANI, BHUPENDRA (ED.), PEACEFUL AND NON-PEACEFUL USES OF SPACE - PROBLEMS OF
DEFINITION FOR THE PREVENTION OF AN ARMS RACE, Taylor and Francis, New
York, 1992 (S. Gorove), 20 J. SPACE L. 198 (1992).
JASENTULIYANA, NANDASIRI (ED.), SPACE LAW - DEVELOPMENT AND SCOPE, Praeger,
1992 (Stoffel), 42 ZLW 102 (1993).
JASENTULIYANA, NANDASIRI, SPACE LAW: DEVELOPMENT AND SCOPE, Praeger, 1992
(Smith), 87 AM. J. INT'L L. 357 (1993).
LORIDANT, PAUL, OFFICE PARLEMENTAIRE D'EVALUATION DES CHOIX SCIENTIFIQUES ET
TECHNOLOGIQUES. RAPPORT SUR LES ORIENTATIONS DE LA POLITIQUE SPATIALE
FRANt;AISE ET EUROPEENNE, 17-2 ANN. AIR & SPACE L. 549 (1992).
MARTIN, PIERRE-MARIE, DROIT DES ACTIVITES SPATIALES, Paris, 1992 (de Graaff), 42
ZLW 109 (1993).
MARTIN, PIERRE-MARIE, LEDROIT DE L'EsPACE: QUE SAIS-JE?, 17-2 ANN. AIR &
SPACE L. 560 (1992).
84
JOURNAL OF SPACE LAW
VOL.2!, NO.!
MASSON-ZWAAN, TANIA L./MENDES DE LEON, PABLO M.J. (EDS.), AIR AND SPACE LAW:
DE LEGE FERENDA, EsSAYS IN HONOUR OF HENRI A. WASSENBERGH, Dordrecht,
1992 (Heintze), 42 ZLW 96 (1993).
MENON, P. K., THE UNTIED NATIONS' EFFoRTS TO OlITLAWTIIE ARMs RACE IN OUlER SPACEA BRIEF HISTORY WITH KEY DOCUMENTS, Edwin Meller, 1990, 20 J. SPACE L.
201 (1992).
MEREDITH, PAMELA L./RoBINSON, GEORGE S., SPACE LAW: A CASE STUDY FOR THE
PRACTmONER - IMPLEMENTING A TELECOMMUNICATIONS SATELLITE BUSINESS
CONCEPT, Dordrecht, 1992 (Heintze), 42 ZLW 106 (1993).
NEUHOLD, H./HUMMER, W./SCllREUER, CR. (HRsG.), OSTERREICHISCHES HANDBUCH DES
VOLKERRECHTS, Wien, 1991 (Heintze), 42 ZLW 99 (1993).
REIJNEN, BESS C.M., THE UNITED NATIONS SPACE TREATIES ANALYSED, Gif-sur-Yvette
Cedex, 1992 (Heintze), 42 ZLW 101 (1993).
SGROSSO, GABRIELLA CATALANO, LA RESPONSABJLITA DEGLI STATI PER LE ATTIVITA SVOLTE
NELLO SPAZIO EXTRA-ATMOSFERICO, 17-2 ANN. AIR & SPACH L. 547 (1992).
SGROSSO, GABRIELLA CATALANO, LA RESPONSABJLITA DEGLI STATI PER LE ATTIVITA SVOLTE
NELLO SPAZIO EXTRA-ATMOSFERICO, Padua, Cedam 1990 (Del Duca), 87 AM.
J. lNT'L L. 354.
SMIDl,MlLTON,lNrERNATIONALREGULATIONOFSATELLITECOMMUNJCATION,UTRECHTSTImIES
IN AIR AND SPACE LAW, 17-2 ANN, AIR & SPACE L. 565 (1992).
SMITS, JAN M., LEGAL ASPECTS OF IMPLEMENTING INTERNATIONAL TELECOMMUNICATION
LINKS, Dordrecht, 1991 (Hobe), 42 ZLW 105 (1993).
STAUDT, BIRGITTA, DIE TRANSATLANTISCHERAUMSTATIONSKOOPERATION - DER RECHTLICHE
RAHMEN EINER LANGFRlSTIGEN MULTINATIONALEN ZUSAMMENARBEIT, Peter Lang,
Frankfurt am Mein, 1992, 20 J. SPACE L. 200 (1992).
TATSUZAWA, K. (ED.), LEGAL ASPECTS OF SPACE COMMERCIALIZATION, Tokyo, 1992
(Knittlmayer), 42 ZLW 109 (1993).
WILSON, ANDREW (ED.), INTERAVIA SPACE DIRECTORY 1992-93, Jane's Info. Group,
1992, 20 J. SPACE L. 201 (1992).
D.
Official
Publications
Agreements
Agreement Among the European Community, Japan, Russia and tbe United
States to establish the International Science and Technology Center.
Done at Moscow, Nov. 27, 1992.
Agreement on the Rescue of Astronauts, tbe Return of Astronauts, and tbe
Return of Objects Launched into Outer Space. Done at Washington,
London, and Moscow Apr. 22, 1968.
Entered into force Dec. 3,
1968. TIAS 6599. Succession deposited: Slovenia, Aug. 20, 1992.
Convention on International Liability for Damage caused by Space Objects.
Done at Washington, London, and Moscow Mar. 29, 1972. Entered
into force Sept. I, 1972; for the U.S. Oct. 9, 1973. TIAS 7762.
Succession deposited: Slovenia, Aug. 20, 1992.
Convention on the International Maritime Satellite Organization
(INMARSAT), witb Annex. Done at London Sept. 3, 1976. Entered
1993
RECEN! PUBLICATIONS
85
into force July 16, 1979.
TIAS 9605. Signature: Cyprus, June 8,
Cyprus, June 8, 1992.
Operating Agreement on the International Maritime Satellite Organization
(INMARSAT), with Annex. Done at London Sept. 3, 1976. Entered
into force July 16, 1979. TIAS 9605. Signature: Cyprus, June 8,
1992.
Operating Agreement relating to the International Telecommunications
Satellite Organization (INTELSAT), with Annexes.
Done at
Washington Aug. 20, 1971. Entered into force Feb. 12, 1973. TIAS
7532. Signatures: Azerbaijan, Apr. 13, 1992; Bhutan, June 23,
1992; Czechoslovakia, May 27, 1992.
Satellite Communications Systems Agreement relating to the International
Telecommunications Satellite Organization (INTELSAT), with
Annexes. Done at Washington Aug. 20, 1971. Entered into force
Feb. 12, 1973. TIAS 7532. Accessions deposited:
Azerbaijan, Apr.
13, 1992; Bhutan, June 23, 1992; Czechoslovakia, May 27, 1992.
Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and other Celestial
Bodies. Done at Washington, London, and Moscow Jan. 27, 1967.
Entered into force Oct. 10, 1967. TIAS 6347. Accession deposited:
Algeria, Jan. 27, 1992.
Treaty on Open Skies: Message from the President of the United States
transmitting the Treaty on Open Skies, with twelve Annexes. Done
at Helsinki, Mar. 24, 1992.
1992.
Accession deposited:
CONGRESS
HOUSE COMM. ON SCIENCE, SPACE AND TECHNOLOGY, COMMERCIAL SPACE COMPETITIVENESS'
Acr OF 1992: REPORT (to accompany H.R. 3848 which .•. was referred
jointly to the Committee on Science, Space, and Technology and the
Committee on Armed Services) (including cost estimate of the
Congressional Budget Office) (1992).
HOUSE COMM. ON SCIENCE, SPACE AND TECHNOLOGY, SUBCOMMlTIEE ON SPACE, LEGISLATIVE
ACTIVITIES, 1992. MARKUP BEFORE THE SUBCOMMITIEE ON SPACE AND THE FULL
COMMTITHE ON SCIENCE, SPACE AND TECENOLOGY, 102d Cong., 2d Sess., Apr. 1,
8, 9; June 10; July 1, 1992 (1992).
HOUSE COMM. ON SCIENCE, SPACE AND TECHNOLOGY, U.S. SPACE PROGRAM BENEFITS TO
EDUCATION: HEARING BEFORE THH SUBCOMMITfEE ON SPACE, 102d Cong., 2d
Sess., June 10, 1992 (1992).
HOUSE COMM. ON SCIENCE, SPACE AND TECHNOLOGY, GENERAL ACCOUNTING OFFICE:
AEROSPACEPLANETEcHNOLOGY[MICROFORMj,REsEARCHANDDEVELoPMENrEFFORTS
IN JAPAN AND AUSTRALIA: REPORT TO THE CHAIRMAN. (1991).
SENATE COMM. ON COMMERCE, SCIENCE, AND TRANSPORTATION, THE SPACE STATION FREEDoM
AND SPACE LAUNCH ISSUES: HEARING BEFORE THE SUBCOMMITfEE ON SCIENCE,
TECHNOLOGY, AND SPACE OF THE COMMITfEE ON COMMERCE, SCIENCE, AND
TRANSPORTATION, 102d Cong., 2d Sess., Mar. 18, 1992 (1992).
JOURNAL OF SPACE LAW
86
VOL.21, NO.1
ESA
Satellites at the Service of the Environment and Development (Paris
1992).
ANNUAL REPORT - RAPPORT ANNUEL '92 (ESTEC, 1993)
INDIA
Government of India, Insat Coordination Committee, Indian National
Satellite System (June 1992).
ITU
Thirty-second Report by the International Telecommunication
Union on Telecommunication and the Peaceful Uses of Outer Space (Geneva
1993).
UNITED NATIONS
General Assembly, Committee on the Peaceful Uses of Outer Space, Centres
for Space Science and Technology Education, doc. A/AC.105/534
(1993).
General Assembly, Committee on the Peaceful Uses of Outer Space,
International Cooperation in the Peaceful Uses of Outer Space Activities of Member States, doc. AlAC.!05/523 (1992).
General Assembly, Committee on the Peaceful Uses of Outer Space, Report
of the Committee on the Peaceful Uses of Outer Space, Off. Rec.,
48th Sess., doc. Al48/20 (1993).
General Assembly, Committee on the Peaceful Uses of Outer Space, Report
of the Legal Subcommittee on the Work of its Thirty-second
Session, doc. AlAC.!05/544 (1993).
General Assembly, Committee on the Peaceful Uses of Outer Space, Report
of the Scientific and Technical Subcommittee on the Work of its
Thirtieth Session, doc. A/AC.105/543 (1993).
General Assembly, Committee on the Peaceful Uses of Outer Space, Report
of the United Nations Expert on Space Applications to the Scientific
and Technical Subcommittee, doc. AlAC.105/533 (1992).
Secretariat, Coordination of outer space activities within the United
Nations system: programmes of work for 1993 and 1994 and future
years: report of the Secretary General, doc. AlAC. 105/524 (1992).
Secretariat, Space Activities of the United Nations and International
Organizations - A Review of the Activities and Resources of the
United Nations, its Specialized Agencies and Other International
Bodies Relating to the Peaceful Uses of Outer Space, doc.
AlAC.105/521 (1992).
E.
Case
Avtec Systems, Inc. v. Peiffer, 805 F. Supp.' 1312 (E.D. Va. 1992).
1993
RECENT PUBLICATIONS
F.
87
Miscellaneous
AMERlCN INSTIUTEOF AERON AUTICS AND As1RONAUTICS, INTERNATIONAL SPACE COOPRATION,
REPORT ON AN AIAA WORKSHOP MARCH 1993 (!993).
EUROCONSULT, EUROPEAN SPACE DIRECTORY (8th ed. Sevig Press, 1993).
EUROCONSULT, SPACE DIRECTORY OF RUSSIA (Sevig Press, 1993)
EUROCONSULT, WORLD SPACE INDUS1RY SURVEY:lO YEAR OlJILOOK (1993)
EUROPEAN CENTRE FOR SPACE LAW, SPACE LAW TEACIDNG IN WESTERN EUROPE (VOL.2,
KLUWER 1993).
EUROPEAN CENTRE FOR SPACE LAw, SPACE LAW TEACIDNG IN EUROPE (NDHOFF,1993).
INTERNATIONAL INSTITUTE OF SPACE LAW OF THE INTERNATIONAL ASTRONAUTICAL
FEDERATION, PROCEEDINGS OFTIIE TllIRTY-FlFTI! COIlilQUIUM ONTIIE LAW OF OUIER
SPACE, AUG. 28-SEPT.5, 1992, WASHINGTON, D.C. (AMERICAN INSTITUTE OF
AERONAUTICS AND ASTRONAUTICS, W ASIDNGTON, D.C. 1993). INCLUDED ARE:
IISL Board of Directors .................... ,...................................................................................................... iii
In Memorium ............................................................................................................................................ iv
Introduction
Judge Manfred Lachs ............................................................................................................................. v
Emerging and Future Supplements to Space Law Specifically in the Context of the
International Space Year
Standardized Terms and Conditions-The Implementation of Common Objectives in
Outer Space
H. H. Almond Jr..................................................................................................................................... 3
The Developing U:;; Law of Liability Applicable to LaunCh Agreement Parties
R. Bender ........... :.................................................................................................................................. 13
Developing a System of Dispute Settlement Regarding Space Activities
K.-H. BOckstiegel ................................................................................................................................. 27
A Way to Complement, Enforce and Improve the Space Treaty and Related International
Instruments of Space Law
A. A. Cocca .......................................................................................................................................... 36
The New Age of Discovery and the Changing Structure of Space Law
H. DeSaussure ...................................................................................................................................... 44
Expanding Space Law into the 21st Century
ij:Galloway .......................................................................................................................................... 49
The Role of the. Spaceport Florida Authority in the Development of Cooperative International
Arrangements
G. M. Ganzkow .................................................................................................................................... 61
Biojuridics and AstroJaw: An Updated Application to Social and Legal Theory
V. Garshnck .......................................................................................................................................... 72
Major Definitiona) Issues in the Space Agreements
S. Gorove .............................................................................................................................................. 76
Self-Determination in Space Law: A Retreat to Basic Human Rights
B. A. Hurwitz ....................................................................................................................................... 80
Legal Regulations of Space Activities in Russia and Commonwealth of Independent States
E. Kamenetskaya, V. Vcreshchetin. and E. Zhukova .......................................................................... 86
Cross-Waivers of Liability
p R.I.arscn ................................................................................: ......................................................... 91
88
JOURNAL OF SPACE LAW
VOL.21. NO.1
Legislator Versus Interpreter: How Far is it Necessary to Suppleme.nt Space Law?
P. M. Martin ......................................................................................................................................... 97
Spacecraft Motion Management (SMM): Institutional and Legal Frameworks
P. L. Meredith ......................... :.......................................................................................................... 102
Space Policy in Russia: Perspectives fOl' Legal Development
V. Postyshev and l. Moiseyev ............................................................................................................ 113
International Satellite Organizations: From Monopoly to Cartel
M. Potter ............................................................................................................................................. 120
The End of the Cold War and the Prospects for the Settlement of Space Law Disputes
O. M. Ribbelink .................................................................................................................................. 130
Legal Issues Raised by the Detection of Near-Earth Objects
G. P. Sioup ......................................................................................................................................... 140
International Liability for Damage Caused by Space Objects with Nuclear Power Sources on
Board
A. O. Terekhov ................................................................................................................................... 151
ESA and the EC: A Coherent Approach in Space
W. M. Thiebaut and K. J. Madders .................................................................................................... 163
Towards a European Space Agency, Mark II? The Space Program of the Former
Soviet Union and the Commonwealth of Independent States
F. G. von der Dunk .............................................................................................................................. 172
Resolution of Disputes Arising in Outer Space
W. N. White Jr................................................................................................................................... 183
Quo Vadis? Space Law in the 21st Century
W. B. Wirin ........................................................................................................................................ 194
Legal Regulation of Economic Uses of Outcr Space
Alternative Legal Regimes to Enable Universal Telecommunications Roaming
R. L. Anglin Jr.................................................................................................................................... 207
Industrial Property Rights in Outer Space: The Space Station International Governmental
Agreement (lGA) and the European Partner
A. M. Balsano .................................................................................................................................... 216
The Legal Implications of High Technology Export Controls for Commercial Activities in
Outer Space
L. F. Martinez ..................................................................................................................................... 229
The Martin Marietta Case or How to Safeguard Private Commercial Space Activities
T. L. Masson-Zwaan .......................................................................................................................... 239
Procurement of Launch Vehicles and Services
D. E. Reibel ........................................................................................................................................ 248
Managing Environmental Issues Including Space Debris
Stratosphere Ozone Problem and Space Activity
C. Q. Christol ..................................................................................................................................... 259
Solar Power Satellites: Legal, Ecological and Institutional Implications
S. Courteix .......................................................................................................................................... 271
Space Debris: A Functional Approach
E. Fasan .............................................................................................................................................. 281
The Implementation of Environmental Trealies: The Case of the Montreal Protocol on
Substances that Deplete the Ozone Layer
J. F. Galloway .................................................................................................................................... 291
Legal Aspect of Monitoring and Protecting Earth Environment by Space Technology
He Qizhi ............................................................................................................................................. 297
Must Space Mission.o; he Hencfidal'!
L. Perck ..............
. ................................................................................................................... 303
1993
RECENT PUBLICATIONS
Environmental Liability Issues of Rocket Exhaust Under International Space Law
M. Rothblatt ....................................................................................................................................... 307
Legal Aspects of Using Nuclear Reactors on the Moon
MarciaS. Smith .................................................................................................................................. 312
Other Legal Subjects
Demilitarization of.Quter Space
G. Calalano Sgrosso ........................................................................................................................... 325
Human Society in Mars: New Legal Needs for a Different Mankind
M. M. Esquivel de Cocca ................................................................................................................... 335
Prospects of Verifying Space Weapons Treaties
v. Ekblad ............................................................................................................................................ 346
About the Legal Definition of International Cooperation in the Exploration and Use of Outer
Space
J. M. Filho .......................................................................................................................................... 355
The Legality of the Military Uses of Outer Space by the Canadian Forces
L. Haeck .............................................................................................................................................. 360
The Space Plane and International Space Law
Y. Hashinloto ..................................................................................... ~ ............................................... 378
Space Law as a Branch of International Law
E. Konstantinov .................................................................................................................................. 382
UK Space Law
F. Lyall ............................................... :............................................................................................... 385
The International Frequency Registration Hoard
F. Lyall ............................................................................................................................................... 394
The Art and Science of the LEO Satellite License Game
1. S. Y. Kwok, G: E. Morgan. ilnd H. R. Patel ................................................................................... 400
Consultation Regime in Space Law
M. Nakamura ................................................................................................,..................................... 411
The Art of Living in Space: International Law and Settlement Autonomy
P. M. Stems and L.r. Tennen ............................................................................................................. 416
Addenda
Report of the Discussions Held After the I-'our Sessions of the 35th Colloquium on the Law of
Outer Space
T. L. Masson~Zwaan .......................................................................................................................... 427
Fourteenth Scientific. Legal Roundtable: Exploration and Uses of the Moon and Other
Celestial Bodies
Introductory Note
V. Kopal ......................................................................................................................................... 431
Space Exploration: Scientific and Technological Aspects
C. Pilcher ........................................................................................................................................ 432
Exploration and Uses or Celestial Bodies of the Solar System
M. Coradini ................................................................................................................................... 461
Legal Implications of the Exploration and Uses or the Moon and Other Celestial Bodies
N. M. Matte ., .................................................................................................................................. 471
'Some Legal Aspects uftbe Return to the Moon and Expected Flights to Other
Celestial Bodies
V. Kopal .......................................................................................................................................... 491
Utilization of Extraterrestrial Resources: Law, Science and Policy
P. M. Stems and L.I. Tennen ......................................................................................................... 499
89
90
JOURNAL OF SPACE LAW
VOL.21. NO.1
United Nations Resolution on Principles Relevant to the Use of Nuclear Power Sources
in Outer Space
AlRES/47/68 adopted by the UN General Assembly on 14 December 1992 ........ ;, ....................... .-...... 508
Annual Report 1992: Standing Committee on the Status of International Agreements
Relating to Activities in Outer Space
A .. D. Terekhov ...................................................................................................................................516
The 1992 International Institute of Space Law of the International Astronautical Federation
Moot Court
Milton L. Smith .................................................................................................................................. 525
Statutes of the International Institute of Space Law of the International Astronautical
Federation ............................................................................................................................................. 547
Author Index ......................................................................................................................................... 550
CURRENT DOCUMENT
Status of the Outer Space Treaties
(as of 10 February 1993)'
1.
Treaty OIl principles Governing the Activities of States in the
Exploration And Use of Outer Space inc1udin& the Moon and ~
Celestial Bodies (Outer Space Treaty)
Adoption by the UN General Assembly:
Opening for signature:
19 December 1966
Entry Into focce:
27 January 1967
10 October 1967
Depositary:
U.K •• U.S.A., Russian Federation
~1HSJ.l!: on the Rescu'e of Astronauts
the RetuDI of Astronauts and the
.&u.Y,rn of Objcct-s Launched into Outer Space (Rescue Agreement)
2.
19 December 1967
22 April 1968
Adoption by the UN General Assembly:
Opening for sir,lIature: .
Entry into fOJ:ce:
Depositary:
J December 1968
U.K .• ·U.S.A .• Russian Federation
Convent-ion on Intqrnational Liability for Damage Caused by Space Object!;
3,
(Liability Convention)
Adoption by the UN General Assembly:
Opening for signature:
Entry into force:
Depositary:
29 November 1971
29 !larch 1972
1 September 1972
U.K.. U. S .A.. Russian Federation
Convention. on Registration of Objects Launched into Outer Space
4.
(Registration Convention)
Adoption by' the" UN General Assembly:
Opening for signature:
Entry into force:
12 November 1974
14 January 1975
15 September 1976
UN Secretary-General
Depositary:
5.
Agreement GovernIng the Activities of States on the Moon and Other
Celestial Bodies .(Koon Agreement)
5 December 1979
18 Decelllber 1979
11 Jn1y 1984
UN Secretary-General
Adoption by the UN General Assembly:
Opening for signature:
Entry into force:
Depositary:
•
Informa.1ion provided through the courtesies of the U.N Office for Legal
Affairs.
91
Vol. 21, No.1
JOURNAL OF SPACE LAW
92
State
(1)
Outer Space
'(reaty
Afr,hanistan
•
Algeria
R
(2)
Rescue
Agreezent
(3)
(4)
(5)
Liability
Convention
Registration
Convention
Hoon
Agreement
S
Antigua and
Barbuda
R
R
R
R
Argentina
•
R
R
S
Australia
R
R
R
R
R
Austria
R
R
R
R
R
Bahamas
•
R
nllncl~ld."'11
•
Barbados
R
R
Belarus
R
R
R
R
BclglWl
R
R
R
R
Benin
R
Bolivia
S
S
Botswana
S
R
Brazil
It
R
R
Bulgaria
•
R
R
R
Burkina Faso
R
Burundi
S
S
S
R
R
•
CaPlbodia
Cwaeroon
•
R
Canada
R
R
R
R
Central
AfrIcan
Rep.
•
•
Chile
R
R
R
R
China
R
R
R
R
Colombia
S
S
S
Costa Rica
S
•
R
R
R
R
Gub."l
•
R
Cyprus
R
R
Czech
Republic
DCllIGIlrk
R
R
R
R
R
R
1993
CURRENT DOCUMENT
(1)
OUt.er Space
Stllte
Treaty
93
(2)
(3)
(4)
Rescue
Agreement
Liability
Convention
Registration
Convention
DOlllinican
Republic
R
S
R
Ecuador
R
R
a
Egypt
a
a
s
IU SII_L vadur
Il
R
S
ECluotorlai
Guinea
a
Ethiopia
S
Fiji
R
R
a
Finland
R
R
a
France
R
R
R
lUlbOn
K
K
C_bia
S
a
s
Germany
a
R
a
Gha)Ja
S
S
S
Greece
a
R
R
a
Agreement
s
a
S
Guatemala
(5)
lIDon
S
. GulneaBissau
R
R
Guyana
S
a
Haiti
S
S
1I01y See
S
lIonduras
S
lIungary
R
R
•
Icela'@
a
R
S
India
a
R
R
R
Indonesia
S
s
S
S
R
Iran
(lslaalc
Rep. of)
S
R
a
lrafl
a
a
a
Ireland
R
R
a
Israel
R
R
R
Italy
R
a
R
Jamaica
R
S
S
94
JOURNAL OF SPACE LAW
(1)
Outer Space
State
Treaty
Vol. 21, No.1
(2)
(3)
(4)
Rescue
Agree.ent
Liability
Convention
Registration
Convention
Japan
K
R
a
Jordan
S
S
S
Kenya
R
K
(»
Hoon
Agreement
a
a
Koren,
Rl:lll. of
K
K
Kuwait
a
a
R
Laos
K
R
R
Lebanon
R
R
S
Lesotho
S
S
Libyan Arab
Jau.ahiriya
R
LLeehten~
K
R
sLein
Luxczabourg
S
S
lkldas.ascar
R
R
Malaysia
S
S
Haldives
Hali
R
R
R
R
S
Hill LA
&udtlus
K
K
Mexico
a
R
R
R
a
R
S
Honaco
Hongolia
a
R
R
Morocco
R
R
R
Hyanmar
a
s
Nopal
R
R
Netherlands
a
a
New Zealand
K
a
R
Nicaeagua
S
S
S
S
Niger
R
a
a
R
Nigeria
a
R
norway
R
a
s
Pakist:an
R
a
R
1':lIm111a
S
Oaan
a
"
a
R
a
S
R
I'opua Bev
Guinea
R
R
R
R
R
a
1993
Stale
CURRENT DOCUMENF
95
(1)
(2)
(3)
(4)
(S)
OUter Space
Treaty
Rescue
Liability
Registration
Agree_nt
Convention
Convention
Hoon
Agreeaent
l'eeu
R
It
S
Fhilippines
S
S
S
Poland
It
It
It
It
R
It
It
l'urtugal
R
Qntllr
ROiMola
It
It
It
Russian
redcration
It
It
It
Rwanda
S
S
S
San Harino
It
a
Saudi Arabia
R
Senegal
S
a
R
It
It
Sierra Leone
It
S
S
SIngapore
It
It
R
a
It
Slovenia
Soaalia
S
S
South Africa
a
It
Spain
a
It
Sci Lanka
It
It
Swaziland
S
It
It
Seychelles
It
S
S
a
It
Sweden
It
a
a
It
Switzerland
It
a
a
It
Syrian Arab
P.op.
It
R
a
TIw.lland
It
It
Togo
a
Ton&&
It
Trinidad and
Tobago
S
Tunisia
R.
It
Turkey
R
S
U&and&
It
Ukraine
It
It
It
It
United
It
It
It
It
Kingdoll
S
It
a
It
R
Vol. 21, No.1
JOURNAL OF SPACE LAW
96
State
(1)
Outer Space
Treaty
(2)
Rescue
AgreeDlent
(3)
Liability
Convention
(4)
Registration
Convention
(5)
Hoon
Agreement
United Rep.
of Tanzania
5
U.S.A.
R
R
R
R
Uru&uay
R
R
R
R
Venezuela
R
5
R
Vietnam
R
Yemen
R
5
Yugoslavia
5
R
R
Zaire
5
5
5
ZaIIlbia
R
K
R
5-27
R-91
5-24
R-80
5-27
R-13
R
R
5·5
5·5
&-36
R-'
Qu..<mk'itl.!m
European Space Agency (ESA)
Euro~an
D
D
Satellite Organization (EUIELSAT)
D-'"2
lf2..t;.g§. :
5
D
D
D
D:l
R
D
Telecoanunlcations
Signature only
Ratification, accession or succession
Declaration of acceptance of rights and obligations
D-l
n:o
Developments in
Space Law
Issues a~d Policies
by Stephen Gorove
UTRECHT STUDIES IN AIR AND SPACE LAW 10
Following an overview. of United States
domestic space laws, this book focuses on
some of the crucial issues that space lawyers
and policy makers had to face during the last
two decades. Presented in thirty-three chapters, the materials highlight basic issues associated with the use of the geostationary orbit,
international direct television broadcasting by
satellite, solar powered satellites and the relevant concerns of developing nations. The
book addresses policies regarding the protection of the space environment, deals with
issues of spa".e transportation systems, international space f1ight,liability for damage, arms
control,remote sensing from space, and
those associated with space stations. Tho
study also projects expectations and presents
a case study of issues that are likely to arise
with the aerospace plane. Major international
space instruments are reproduced in the
Annex.
Contents
Preface. Part I: Background. Part II: Resources. Part III: Environment. Part IV: Transportation. Part V: Liability. Part VI: Arms Control. Part VII: Remote Sensing. Part VIII:
Space Stations. Part I.X: Future. Part X: Annexes. Index.
1991,420 pp.
ISBN 0-7923-1444-°1
Hardbound $109.00/DII.195.00/£66.00
Martinus Nijhoff Publishers, DordrechtlNISER
P.O. 00)( 322, 3300 All Dordrechl. The Nelhorlands
.
P.O. 00)( 358. Accord Sla1ion, Hingham, MA 02010·0350. U.S.A.
r'II~I/III1I1I11II11I11I1II1'"
New
Publication
KLUWER
ACADEMIC
PUBLISHERS
IMPORTANT PUBLICATIONS
on Space Law
~
,VI' AN INTRODUCTION TO SPACE LAW
··...it
by Dr. Isabella Diederiks-Verschoor
... ~ This new work on Space Law fills the need for a concise and
.
comprehensive overview of the subject. Students, practitioners,
and corporate executives will appreciate this useful guide to the legal problems and practical consequences ofthe important space treaties that have
been negotiated to date - the texts of which are provided for reference.
An Introduction to Space Law also covers the legal issues raised by the
commercialization of space, such as environmental issues, and the drive
to preserve outer space for peaceful purposes.
Available in May, 1993. Softcover, ISBN 90-6544-692-3,245 pgs,
price approximately $70.00
AIR & SPACE LAW
Board ofEditors: B.J.H. Crans, I.H.Ph. Diederiks-Verschoor,
W.P. Hoore, AA van Wijk, H.A Wassenbergh
Previously known as Air Law, this journal is the leading periodical in this
field. Appearing six times a year, it presents topical information on aviation policy and the civil, commercial administrative and penal aspects of
the study and practice of air - and now space -law.
Each edition of AIR & Space LA W contains many valuable insights
provided by experts in the field, comments extensively on recent world-
wide case law, presents the latest news from international air organizations
and provides conference reports. Once each year you'll also receive an·
annual bibliography section.
All subscribers will receive an annual binder to enable easy storage.
Bound back volumes are available, up to and including 1991.
Bi-monthly journal, ISSN 0165-2079. 1993 subscription: $191.00
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